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DIGEST OF OPINIONS 



OF THE 



JUDGE ADVOCATE GENERAL 
OF THE ARMY 



COMPRISING BULLETINS, WAR DEPARTMENT, 1917 

Nos. 26, 34, 42, 49, 54, 67, 72, and 75, 

TOGETHER WITH 

DIGESTS OF CERTAIN OTHER OPINIONS 

PUBLISHED IN 

OPINIONS OF JUDGE ADVOCATE GENERAL, VOL. 1, 1917. 

APRIL 1, 1917, TO DECEMBER 31, 1917 




WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1920 



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War Department 

Document No. 976 

Office of The Adjutant General 



0. Of M>. 



WAR DEPARTMENT, 

Washington, March 1, 1920. 

The following bulletins of the War Department, 1917, Nos. 26, 34, 
42, 49, 54, 67, 72, and 75, together with digests of certain other pub- 
lished opinions, are republished for the information of the service 
in general. 

[016.2, A. G. O.] 

By ORDER OF THE SECRETARY OF WAR : 

PEYTON C. MARCH, 

General, Chief of Staff. 
Official : 

P. C. HARRIS, 

The Adjutant General. 



TABLE OF CONTENTS. 



Page. 

Bulletin 26, W. D., 1917 5 

Bulletin 34, W. D., 1917 .— 15 

Bulletin 42, W. D., 1917 29 

Bulletin 49, W. D., 1917 37 

Bulletin 54, W. D., 1917 45 

Bulletin 67, W. D., 1917 53 

Bulletin 72, W. D., 1917 , 77 

Bulletin 75, W. D., 1917 98 

Other miscellaneous opinions 112 

Index 133 

NOTE. 

Numbers and letters appearing in captions refer to sections in Dig. Ops. 
J. A. G. 1912. 
4 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE 
GENERAL OF THE ARMY. 



BULLETIN 26. 

OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

AVIATION PAY : Officers on balloon duty. 

Upon the question raised as to whether or not officers required to 
make regular and frequent aerial flights in balloons are entitled to 
extra pay authorized by section 13 of the national defense act of 
June 3, 1916: 

Held, that such officers are entitled to the extra pay authorized by 
the statute; that the act of July 18, 1914 (38 Stat. 514), creating the 
aviation section and prescribing the duties of the same expressly 
charged that section with the duty " of operating or supervising the 
operation of all military aircraft, Including balloons and aeroplanes^ 
that in authorizing the increase of pay to officers on duty requiring 
them "to participate regularly and frequently in aerial flights" the 
act made no distinction as to the kind of aerial craft; and that 
the national defense act, while dealing with the organization, com- 
pensation, etc., of the aviation section, leaves in force the provision 
of the act of July 18, 1914, prescribing the duties of that section, and, 
like the act of Jufy 18, 1914, makes no distinction with respect to the 
character of aerial craft ; but the law requires that the officer, while 
receiving this pay, shall be on duty requiring him to participate 
regularly and frequently in aerial flights, having regard to the nature 
of the craft in which such flights are taken ; and this must be the real 
duty of the officer under his assignment. 

Ops. J. A. G. 72-181, Apr. 3, 1917. 

DESERTERS : National Guard in Federal service. 

The question was presented whether deserters from the National 
Guard in Federal service continue liable to arrest after muster out 
of Federal service of all the National Guard; and if so, whether 
rewards are payable for such arrests. 

Held, that the crime of desertion being complete upon breach of 
the obligation to serve, the continued amenability is in no way re- 
lated with continuance in the service of the organization from which 
the deserter absented himself, and that therefore deserters from the 
National Guard in Federal service continue amenable to arrest until 
discharged or until the running of the statute of limitations, and 
such delinquents are deserters from the Army within the meaning 
of the statutes authorizing payment of rewards. 

Ops. J. A. G. 26-200, Mar. 26, 1917. 

5 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

ENLISTED MEN : Absence without leave after revocation of furlough. 

A letter revoking the furlough of an enlisted man was sent to the 
place designated by him as his address but failed of delivery because 
he had removed therefrom without notifying his proper superiors. 
Later a friend notified him that he had been dropped as a deserter. 
He paid no attention to this, but reported back at the expiration of 
his furlough. 

Ilelch that having been put on inquiry and having omitted to in- 
quire he was chargeable with all the facts which by proper inquiry 
he might have ascertained, and that he should therefore be regarded 
as having been absent without leave from the date he was apprised 
that he had been dropped as a deserter until his return to military 
control. 

Ops. J. A. G. 2-135, Apr. 4, 1917. 

FIELD OFFICERS: Detached service. 

A field officer of Infantry, who served as judge advocate of the 
punitive expedition, inquired whether such service should be re- 
garded as detached service or duty with an organization within the 
meaning of existing detached service legislation relating to field 
officers. 

Held, that as at least two companies of Infantry entered into the 
composition of the command with which this officer was serving he 
was, under a recent decision of the Secretary of War overruling the 
opinion of this office of January 3, 1917, entitled to have the period 
in question credited as service with an organization. 

Ops. J. A. G. 6-124.3, Apr. 5, 1917. 

GOVERNMENT PROPERTY: Unlawful purchase of. 

A report was submitted with reference to the failure of the Federal 
grand jury, Del Rio, Tex., to find indictments in the case of — 

(a) A saloon keeper wearing an olive-drab sweater and an olive- 
drab shirt, both Government issue, and 

(b) A ranchman having in his possession one Colt's automatic 
pistol, caliber .45, Government issue, with indications thereon of an 
attempt to obliterate the Government marks. 

Section 35 of the Penal Code prescribes a penalty for knowingly 
purchasing or receiving in pledge from any soldier, etc.. military 
property, including arms and clothing; and section 1242, Revised 
Statutes, forbids the sale, etc, of such property and prescribes that 
k ' the possession of any such property by any person not a soldier or 
officer of the United States shall be prima fad, evidence of such 
sale," etc. 

Held, that inasmuch as the articles bore plain indications that they 
were articles of Government issue, the sale of which is forbidden by 
law, the possession of them, in connection with evidence showing 
their issue and that they were missing, should be regarded, in view 
of the provision of section 1242, Revised Statutes, as prima facia 
evidence of the unlawful sale, sufficient to warrant an indictment. 

Held farther, that as, under the law, a finder of goods who appro- 
priates them to his own use where there is a reasonable clue to owner- 
ship thereof is guilty of larceny (25 Cyc. 35-38) ; and as the articles 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 7 

in these cases bore plain indications that they were articles of Gov- 
ernment issue, the possession of the same under circumstances show- 
ing an intent to appropriate them to the use of these parties should 
be regarded as prima facie evidence, sufficient to warrant the finding 
of indictments for larceny thereof. 

Advised, therefore, that a competent officer be instructed to confer 
with the United States attorney with a view to the presentation of 
such evidence as will be required to secure indictments by the grand 
jury in such cases. 

Ops. J. A. G. 80-030, Apr. 14, 1917. 

LEASE OF GOVERNMENT PROPERTY: Revocation of. 

An electric company holding a lease of a Government electric 
power plant applied for a revocation of its lease, to take effect seven 
months prior to its expiration, for the reason that it had disposed 
of it« plant to another company, and had therefore discontinued its 
use of the Government plant. The lease contained a provision for 
its annulment or revocation at any time by the Secretary of War. 

It appeared that no advantage would come to the United 
States through the revocation of the lease, as no use would 
be made of the property, and also that there was no objection to 
its revocation, other than the loss of revenue to the Government 
by reason thereof. 

Held, that the provision in the lease for its revocation at any time 
by the Secretary of War was intended to be exercised in the in- 
terests of the Government, and not for the purpose of relieving 
the lessee from its obligation under its contract, and that the Secre- 
tary of War was without authority to grant the revocation applied 
for. as such action on his part would amount to a surrender of 
propertv rights of the Government. 

Ops. J. A. G. 80-722.4, Apr. 14, 1917. 

LINE OF DUTY: Death occurring in duty status. 

An officer on duty status was killed while engaged in normal and 
proper recreation. The Pension Bureau refused his widow a pen- 
sion. Query : Did the death occur in line of duty within the adminis- 
trative determination of the War Department ? The Pension Bureau 
interprets the words "death due to military service in line of duty." 
as they are used in the pension law, as admitting only deaths where 
an act of military duty is related to the death as an effective cause. 
Congress itself has interpreted the words to refer only to the status 
of the deceased at time of death. The War Department adopts 
the latter construction and has consistently construed casualties as 
due to military service in line of duty wherever the person suffering 
them was on a duty status under competent orders and engaged in 
occupation or recreation proper and normal to persons in that status. 
Tested by this rule, held, that this casualty was due to military 
service in line of duty. It is unforunate that the construction of 
this law is not consistent in both departments, but, after careful 
consideration, this office can concede nothing of its own view of the 
meaning of these words. 

Ops. J. A. G. 42-520, Mar. 24, 1917. 



8 DIGEST OP OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

NATIONAL GUARD RESERVE: Discharge from Reserve to permit en- 
listment in National Guard. 

It being proposed to discharge National Guard reservists with a 
view to their immediate reenlistment in regiments of the National 
Guard : Held, that without considering how far the President 
legally c(m go in authorizing wholesale discharges from the National 
Guard Reserve, it is enough to say that the national defense act con- 
templates a well-defined function for the National Guard Reserve 
and its continuance for the performance of that function; that it 
would defeat the purpose of the law to authorize discharges on the 
considerations mentioned; and that in the absence of any showing 
of convenience to the Government such discharges ought not to be 
authorized. 

Ops. J. A. G. 58-052, Apr. 3, 1917. 

NATIONAL GUARD RESERVE: Transfer to, of administrative staffs. 

The Secretary of War having approved the opinion of this office 
that certain officers of the administrative staffs of the several States 
did not constitute a part of the National Guard as organized under 
the national defense act, a further opinion was desired on the ques- 
tion whether such officers could be transferred to the National Guard 
Reserve under section 77 of the national defense act of June 3, 1916, 
which provides that — 

" Officers of said guard rendered surplus by the disbandment of 
their organizations shall be placed in the National Guard Reserve." 

Held, that this section has no application to officers appointed for 
State administrative purposes and who have not been appointed to 
offices having any place in the organization of the units actually 
maintained by the respective States. 

Held further, that the authority conferred by section 78 of the 
national defense act for the organization of the National Guard Re- 
serve " in each State," etc., to " consist of such organizations, officers 
and enlisted men, as the President may prescribe," contemplates a 
reserve to the active organizations maintained in the State, and that 
it can therefore have no officers other than those of the character pro- 
vived for the active organizations maintained in the particular State. 

Ops. J. A. G. 58-213, Apr. 12, 1917. 

PHILIPPINE ISLANDS: Acts of Congress relating to rifle clubs not ap- 
plicable to. 

In connection with steps taken to organize a civilian rifle club at 
Manila, P. I., the question was presented whether the provisions of 
the acts of Congress of March 3, 1905 (33 Stat. 986), and April 24, 
1914 (38 Stat, 370), relating to the sale and issue of rifles, ammuni- 
tion, etc., to rifle clubs were applicable to the Philippine Islands. 

Held, that neither one of the acts mentioned is applicable to the 
Philippine Islands, it being expressly provided in the Philippine 
organic act that section 1891 of the Revised Statutes, which declares 
that— 

" The Constitution and laws of the United States which are not 
locally inapplicable shall have the same force and effect within all 
the organized Territories and in every Territory hereafter organized 
as elsewhere within the United States " — 
xhall not apply to the Philippine Islands. 
Ops. J. A. G. 80-140, Apr. 13, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 9 

PROVISIONAL SECOND LIEUTENANTS: Discharge prior to expiration 
of statutory provisional period. 

The discharge of a provisional second lieutenant after six months' 
service as such was asked on the ground that he lacked the mentality 
requisite for an officer and had demonstrated that he could never 
reach the standard that should be required of an officer; thus pre- 
senting the question whether the provisional appointment of a second 
lieutenant might be terminated on account of failure to demonstrate 
suitability and fitness for permanent appointment prior to the termi- 
nation of the two years mentioned in section 23 of the national- 
defense act. 

Held, that the word " provisional " occurring in that portion of 
section 23 of the national defense act reading : 

" Hereafter all appointments of persons other than graduates of 
the United States Military Academy to the grade of second lieu- 
tenant in the Eegular Army shall be provisional for a period of two 
years, at the close of which period such appointments shall be made 
permanent if the appointees shall have demonstrated, under such 
regulations as the President may prescribe, their suitability and 
moral, professional, and physical fitness for such permanent appoint- 
ment ; but should any appointee fail so to demonstrate his suitability 
and fitness, his appointment shall terminate " — • 

relates only to the alternative action permitted at the end of the period 
designated and carries no authority to terminate the appointment 
within that period ; that the terms of the section quoted plainly allow 
to the provisional appointee a period of two years in which to acquire 
and demonstrate suitability and fitness ; and that during that period 
the provisional appointee may be removed from office only by the 
same means by which a permanent officer mav be removed. 

Ops. J. A. G. 64-213.1, Mar. 21, 1917. 

REGULAR ARMY RESERVE: Grade of first class private, Engineer 
Corps. 

A company commander of Engineers inquired whether he was cor- 
rect in placing on the rolls as privates the names of reservists re- 
called to the colors for active duty and assigned to his company, 
when such reservists had been furloughed as first class privates, or 
if he should have carried them as attached privates,, first class, and 
assigned them to the first vacancies in that grade. His doubt was 
due to the fact that section 11 of the national defense act of June 
3, 1916, specifies as a component part of an Engineer company, 
first class privates and privates, whereas the old law (sec. 11 of the 
act of Feb. 2, 1901) prescribed first class privates and second class 
privates. 

Held, that it evidently was not the intention of Congress by the 
change in the designation of the two grades mentioned to abolish 
the old grades and create new ones, since the pay remains the same, 
and section 28 of the national defense act, which declares that 
" hereafter the monthly pay of men of certain grades of the Army 
created in this act shall be as follows, namely," does not include the 
grade of private, first class, Engineer Corps, nor private, Engineer 
Corps, and that therefore the reservists referred to by the company 
commander should have been carried on the rolls as privates, first 
class, Engineer Corps, and paid as such, in accordance with the pro- 



10 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

visions of paragraph 86 of the Regulations for the Regular Army 
Reserve, 1916. 

Ops. J. A. G. 6-310, Apr. 2, 1917. 

REGULAR ARMY RESERVE : Grade of wagoner of Cavalry. 

An enlisted man who was furloughed to the Regular Army Re- 
serve in the grade of wagoner of Cavalry was, upon being recalled 
to the colors for active duty by the President's summons of July 18, 
1916, taken up and carried on the rolls as private, under the view 
that the grade of wagoner of Cavalry was abolished by the national- 
defense act of June 3, 1916. 

Held, that the grade of wagoner of Cavalry was not abolished by 
the national defense act, but was preserved in the supply company 
created for each regiment of Cavalry as provided by section 18 of 
that act, and that therefore the soldier under consideration was en- 
titled to be carried on the rolls in the grade of wagoner of Cavalry 
and paid as such, in accordance with paragraph 86 of the Regulations 
for the Regular Army Reserve, 1916. 

Ops. J. A. G. 6-310, Mar. 29, 1917. 

TRAVEL ALLOWANCES : Mutual transfer of officers. 

A first lieutenant, unassigned, was attached temporarily to a regi- 
ment in the Canal Zone for duty. After receiving a regular assign- 
ment and orders to join his regiment in the States, he arranged a 
mutual transfer with an officer of the regiment to which he had 
been temporarily attached in the Canal Zone, and in pursuance with 
the request of the two officers orders were issued announcing the 
transfers, and it was directed therein that " each officer will proceed 
to join his regiment to which transferred." The officer who was thus 
required to join his regiment in the States protested against having 
to make the change at his own expense for transportation, under the 
view that the other officer would have been entitled to travel allow- 
ances and that as he merely took the other officer's place he was en- 
titled to travel allowances. 

Held, that the department could not change the fact that the 
transfer of this officer was in compliance with his own request and 
for his own convenience; that it was proper, if not essential, to state 
in the order of transfer that the change was the result of a transfer 
requested by the two officers, and this being so, it would clearly have 
been contrary to the specific provisions of Army Regulations 1297 
to specify in the order that the travel was necessary in the military 
service, and that, therefore, under the regulations the officer was 
not legallv entitled to travel allowances. 

Ops. J. A. G. 91-210, Apr. 4, 1917. 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

APPROPRIATIONS: Reimbursement for services rendered by one execu- 
tive department for another. 

In an emergency a dredge of the Engineer Department of the 
Army rendered service in rescuing a barge of the Public Health Serv- 
ice of the Treasury Department, which had been sunk in a harbor 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 11 

during- a gale and which lay in a position endangering the station 
buildings. The Engineer Department submitted to the Treasury De- 
partment a voucher for reimbursement of the expenses incurred, 
including pay and subsistence of dredge crew for two days, and for 
coal, oil, depreciation of dredge, etc., amounting to $179.96. 

Held, that while in general where the agencies of one executive 
department of the Government renders service to another such de- 
partment and for its particular benefit, reimbursement to the depart- 
ment rendering the service should be made, yet where such services 
are performed in an emergency for the protection of Government 
property and hence for the common good of the Government rather 
than for the benefit of the particular department aided, no such 
reimbursement should be made. 

Comp. Treas. Mar. 3, 1917. 

COAST ARTILLERY BANDS: Grade of mess sergeant. 

The following questions were presented for decision: 

( a ) May band sergeants of Coast Artillery bands be detailed as 
mess sergeants? 

(b) If band sergeants may be so detailed, are they entitled to 
additional pay at the rate of $6 per month? 

(c) Or, is it the intention of the law that the 263 mess sergeants 
authorized in the act of June 3, 1916, shall suffice for all organiza- 
tions of the Coast Artillery Corps? 

Section 20 of the national defense act of June 3, 1916, provides 
that— 

" The Coast Artillery Corps shall consist of * * * ; 263 mess 
sergeants: * * *; and 18 bands, organized as hereinbefore pro- 
vided for the Engineer band. * * * '' 

The plan of organization of the Engineer units is provided for in 
se< tion 11 of the same act. The grade of mess sergeant is included in 
each company, but not specified for the band organization. 

Held, that the organization of each of the 18 bands of the Coast 
Artillery Corps being legally the same as that of the Engineer band, 
the grade of sergeant is not included, since this grade is not included in 
the Engineer Corps as prescribed by statute. It is the intention of 
that law that the 263 mess sergeants authorized in section 20 of the 
act of June 3, 1916. shall suffice for all organizations of the Coast 
Artillery Corps, and band sergeants of said ( orps may not be detailed 
as mess sergeants. 

Comp. Treas. Apr. 10, 1917. 

ENLISTED MEN: Aid to dependent families. 

The following questions were submitted for decision: 

(a) Are the families of enlisted men belonging to National Guard 
organizations which were in the service of the United States under 
the President's call of June 18. 1916, and which were mustered out of 
said service, entitled to the benefits of the act of August 29, 1916, as 
amended, while in the service of the United States under the Presi- 
dent's call of March 25, 1917? 

(b) Are the families of enlisted men belonging to organizations 
brought into the Federal service under the President's call of June 
18, 1916, still entitled to the benefits of the act of August 29, 1916, 
as amended, where such organizations remain continuously in service 



12 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

under said call pursuant to the orders suspending the original or- 
ders for their muster out? 

(c) Are the families of enlisted men of the Regular Army entitled 
to the benefits of the act of August 29, 1916, as amended, so long as 
there remain in the service of the United States any organization of 
the National Guard under the call of June 18, 1916, or do the benefits 
of the statutes extend to include such period as National Guard or- 
ganizations mav be in the service of the United States under the call 
of March 25, 1917? 

He7d, that the legislation for the relief of dependent families of sol- 
diers (act of Aug. 29, 1916, as amended by the act of Sept. 8, 1917, 39 
Stat. 649, 801) was enacted with reference to enlisted men belonging 
to National Guard organizations brought into the service under calls 
made by the President prior to such legislation, and to enlisted men 
of the Regular Army in active service during the continuance of the 
National Guard service under such calls, and to none others; and that 
in order that those organizations responding to the call of March 
25, 1917, and those retained in service, as specified in that call, may 
be on an equal footing, so far as family benefits are concerned, it must 
be held that they are all in the service under the call of March 25. 
1917, those organizations which had not been discharged but were re- 
tained in the service having ceased to be in the service under the call 
of June 18, 1916, from and after March 25, 1917. All three questions 
should, therefore, be answered in the negative. 

The present crisis in national affairs has brought on new conditions, 
and Congress being in session at this time if it desires to continue the 
payment for the support of the families of enlisted men of National 
Guard organizations brought into the service or continued in the serv- 
ice under the President's call of March 25, 1917, and of certain 
enlisted men of the Regular Army, legislation expressive of such 
desire should be enacted at this time. There will thus be an oppor- 
tunity to place all on an equal footing. 

Comp. Treas. Apr. 9, 1917. 

PURCHASE OF SUPPLIES: Envelopes for headquarters of military de- 
partments. 

The acts of January 12, 1895 (28 Stat. 624), and June 26, 1906 (34 
Stat. 476), are to the general effect that envelopes for the use of the 
executive departments of the Government and all branches of the 
service coming under their jurisdiction are to be purchased exclu- 
sively by the Postmaster General upon requisitions of such executive 
departments, etc. In a decision of July 22, 1913 (20 Comp. Dec, 34), 
the Comptroller of the Treasury held that the act of June 26, 1906, 
precluded the purchase of envelopes from the appropriation " Con- 
tingencies, headquarters of military departments, etc.," otherwise 
than as authorized by that act, and that the discretion conferred upon 
division or department commanders in that appropriation with re- 
spect to expenditures could not be regarded as authorizing a purchase 
otherwise prohibited by law. Commencing with the fiscal year 1915, 
the appropriation " Contingencies, headquarters of military depart- 
ments, etc.," named stationer among the objects for which the ap- 
propriation might be expended, and the question was presented 
whether the inclusion of stationery among such objects operated as 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 13 

a repeal pro tanto of the prohibitory statutes respecting the officer 
authorized to purchase envelopes. 

Held, that the fact that stationery was named in the appropriation 
among the objects of authorized expenditure thereunder merely in- 
creased specifically the number of heads of lawful expenditures and 
had no effect whatever on the manner in which such expenditures 
were to be made, and that, therefore, expenditures for envelopes 
of headquarters of military departments, etc., of the Army are still 
to be made in the manner indicated bv the acts above cited. 

Comp. Treas. Jan. 29, 1917. " . 

REGULAR ARMY RESERVE: Forfeiture of mobilization and active re- 
serve pay by court-martial sentence. 

In the case of an enlisted man of the Regular Army Reserve 
called to the colors for active service who was convicted by general 
court-martial and sentenced to be dishonorably discharged " and to 
forfeit all pay and allowances now due and to become due while 
under confinement under this sentence," 

Held, that the sentence operated to forfeit not only the unpaid 
pay for active service which became due and payable monthly and 
the balance, if any, due the soldier on account of clothing and other 
allowances, but included as well the amounts which had become due 
the soldier upon his reporting for active duty in response to the 
President's summons, known as mobilization and reservist's pay, 
which had not been paid him at the time of his conviction and sen- 
tence, this view being in consequence with the decision of the Supreme 
Court in the Landers case (92 U. S. 80), in which it was held — 

" The bounty which the petitioner claimed was included in the 
allowances forfeited. Under the term ' allowances ' everything was 
embraced which could be recovered from the Government by the 
soldier in consideration of his enlistment and services, except the 
stipulated monthly compensation designated as pay." 

In the instant case the soldier became entitled under section 31 of 
the act of June 3, 1916, upon reporting for duty and being found 

fhysically fit for service, to the sum of $3.07 as reservist's pay, being 
2 per month for period from June 3, 1916, to July 18, 1916, and, 
under the provisions of section 32 of the same act he became entitled 
to $15.30 as mobilization pay, being $3 per month for the entire 
period of his furlough from February 16, 1916, to July 18, 1916, 
inclusive. 

Held, that so much of paragraph 86 of the Regulations for the 
Regular Army Reserve, published August 15, 1916, as specifies $5 per 
month as the rate of mobilization pay up to June 2, 1916, is invalid. 
Comp. Treas. Apr. 20, 1917. 



DECISION OF THE COMMISSIONER OF PENSIONS. 

EIELD CLERKS: Right to draw pension while serving as such. 

The question was submitted to the Commissioner of Pensions 
whether the acceptance of the position of field clerk (act of Aug. 29, 
1916, 39 Stat. 625) by a civil service clerk receiving a pension would 
operate to cut off his pension in view of the War Department's ruling 



14 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

that field clerks are part of the Military Establishment and not 
subject to the civil service rules and regulations. 

Held, that since the appointment of such clerks is vested in the 
Secretary of War, they must be deemed as officers, and whether they 
be designated in military parlance as commissioned officers or non- 
commissioned officers is immaterial so far as the pension laws are 
concerned, the established rule being that one who serves under a 
commission or appointment from the Secretary of War is a person 
in the military service for pensionable purposes (/Stout case, 19 P. D., 
149) ; and that, therefore, under section 4724, Revised Statutes, and 
the act of March 3, 1891 (26 Stat. 1082), no pension can- lawf ulry 
be paid to a person holding the position of field clerk covering the 
period of such service. Advised, however, that this ruling is sub- 
ject to approval or modification of the Secretary of the Interior 
upon the appeal of any pensioner from the action of the Pension 
Bureau in dropping his name from the pension rolls because of his 
appointment and service as a field clerk under the act of August 
29, 1916. 

Commissioner of Pensions, Apr. 11, 1917. 



BULLETIN 34. 

OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CLOTHING, MILITIA: Approval of survey. 

In order to facilitate action on the property account of militia 
authorities of Hawaii, it was proposed to delegate to the command- 
ing general, Hawaiian Department, authority to act for the Secre- 
tary of War on reports of survey for the Territory of Hawaii. Sec- 
tion 87, act of June 3, 1916, provides that—" if it shall appear to the 
Secretary of War from the record of survey that the property was 
lost, damaged, or destroyed through unavoidable causes, he is hereby 
authorized to relieve the State or Territory or the District of Colum- 
bia from further accountability therefor," but that if damaged 
through negligence, the money value of the property is to be charged 
to the State, etc., and " to be paid from State, Territory, or District 
funds, or any funds other than Federal." Upon the question 
whether the proposed authority could be delegated, 

Held, that the statute confers upon the Secretary of War a dis- 
cretionary or judicial authority, not a ministerial one, and that within 
well-settled rules of law such authority can not be delegated as pro- 
posed; and that the action should be limited, therefore, to authoriz- 
ing the examination of such reports by the department commander, 
the same to be forwarded to the War Department with his recom- 
mendation for final action by the Secretary of War. 

Ops. J. A. G. 58-314, May 8, 1917. 

CONTRACT : Correction of error in bid. 

Upon the question raised as to the legality of accepting the bid of 
the lowest bidder for certain electric installation- as corrected by 
letter submitted following the opening of bids, it appearing that the 
bid as originally submitted was so much lower than the other bids as 
to indicate a mistake ; that upon inquiry it was found that the wrong 
totals had been given for the transmission line; and that the bid as 
corrected Avas about 25 per cent lower than the next higher bid ; 

Held, that the fact that the error occurred as claimed being clearly 
established, there is no legal objection to accepting the bid as cor- 
rected; and that such action is in accordance with precedents cited 
m Dig. Ops., J. A. G. 1912, pp. 330 and 331. 

Ops. J. A. G. 76-240, May 7, 1917. 

CONTRACT: Percentage basis. 

Upon the question whether or not contracts can legally be made 
for such medical supplies as gauze dressings on the basis of cost of 
producing the article plus a reasonable profit; 

Held, that in view of the existing emergency the statutes requir- 
ing advertising in the letting of such contracts are not operative, 
and that there can be no legal objection to such a contract as is pro- 
posed. 

15 



16 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

Further remarked, that the proposed method of making contracts, 
on the basis of cost plus a percentage, is being applied under the 
existing conditions of emergency by the War and Navy Departments 
not onlv in procuring supplies but in construction work. 

Ops. J. A. G. 76-334, May 3, 1917. 

DISCHARGE : Under proper name when service was under assumed name. 

A soldier who served under an assumed name in one enlistment 
during the Philippine insurrection and was honorably discharged 
therefrom, but was dishonorably discharged from a subsequent en- 
listment, requested a discharge under his true name from his first 
enlistment. 

Held, that the act of August 22, 1912, prescribing " that the Secre- 
tary of War and the Secretary of Navy be, and they are hereby, au- 
thorized and required to issue certificates of discharge or orders 
of acceptance of resignation, upon application and proof of identity, 
in the true name of such persons as enlisted or served under assumed 
name, Avhile minors or otherwise, in the Army or Navy during any 
war between the United States and any other nation or people and 
were honorably discharged therefrom," is mandatory, and is appli- 
cable to the cases of all soldiers who served under assumed names 
during the Philippine insurrection and were honorably discharged; 
and that the character of the separation of the soldier from the 
service after a subsequent enlistment is a distinct matter which does 
not affect the duty of the Secretary of War will 1 respect to the pre- 
vious enlistment from which the soldier ,ws | norably discharged 
and to which the statute applies withov. . ncation. 

Ops. J. A. G. 28-521, Apr. 28, 1917. - 

ENLISTED MEN: Making good time lost. 

The question was presented whether, in view of the provisions 
of the new 107th Article of War, an enlisted man is required to 
make good time lost prior to March 1, 1917. which he was not re- 
quired under the old law to make good. 

Held, that the 107th Article of War, being a reenactment of exist- 
ing legislation on the subject of making good time lost by enlisted 
men, with the added provision that it applies to all existing enlist- 
ments, does not require the making good of any time lost prior to 
March 1, 1917, which was not required by the old law to be made 
good, but does require all time lost on and after March 1, 1917, due 
to the causes mentioned in the 107th Article of War, to be made good, 
regardless of the date of enlistment; in other words, that the new 
law differs from the old in that while the old law was held not to 
operate upon enlistments entered into prior to the enactment of such 
law, the new article of war, in addition to requiring fulfillment of 
all past obligations incurred under the old law, applies to all time 
lost in future, commencing March 1, 1917, due to the causes men- 
tioned in the article, in all enlistments. 

Ops. J. A. G. 34-052, Apr. 30, 1917. 

EIELD CLERKS: Enlistment in National Guard. 

Upon inquiry (a) whether Army field clerks and field clerks, 
Quartermaster Corps, are exempt from militia duty, and (b) whether 
their enlistment in the National Guard is prohibited — 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 17 

Held, as to (a), that since Army field clerks and field clerks, Quar- 
termaster Corps, now occupy a status in the military service of the 
United States, they come within the provisions of section 59 of the 
national defense act, which exempts " persons in the military and 
naval service of the United States" from militia duty, and therefore 
are exempted from such duty. 

Held, as to (b), that the National Guard is plainly designed by the 
national defense act to be an effective force and to supplement the 
permanent military forces of the Nation, and that it is plainly the 
intent of the law governing its organization that its members shall 
be available for any service which it may be called upon to perforin, 
and not be prevented from performing such duty by any paramount 
obligation in the permanent military force. This intent is clearly 
indicated by the exemption of persons in the military and naval 
service of the United States from militia duty, above cited. That 
special authority of law is necessary to justify the occupancy of 
status in both the Regular Army and the National Guard by the 
same person is indicated by the authority expressly conferred by 
-cct ion 100 of the national defense act for officers of the Regular 
Army to accept commissions in the National Guard with the permis- 
sion of the President and terminable at his discretion. There is no 
such authority for any persons in the active military service of the 
United States, other than officers, to occupy such dual status. There- 
fore, the effect of the law governing the organization and maintenance 
of the National GMfcd is to render a status in the active permanent 
Military Establish \r incompatible with a status in the National 
Guard. The. enlistm v,< iiArmy field clerks and field clerks. Quar- 
termaster Corps, is the • >re, in effect, prohibited by law. 

Ops. J. A. G. 58-051, Mar. 27, 1917. 

FIELD CLERKS: Heat and light allowance. 

Upon request for reconsideration of the Judge Advocate General's 
opinion of February 8, 1917 (Bui. 15, W. D. 1917, p. 5), the follow- 
ing reply was made : 

k * This office has very carefully reconsidered the question whether 
field clerks are entitled to fuel and light allowances in public quar- 
ters, and I regret to say that I find in the comptroller's decision of 
March 9, 1917, referred to by Mr. G. W. Cooke, field clerk, Quarter- 
master Corps, nothing to warrant changing the views of this office 
on the subject. (Bui. 15, W. D. 1917, p. 5.) 

" In his decision of March 9, the comptroller held that the pro- 
vision of the act of June 3, 1916, giving pay clerks, Quartermaster 
Corps, the rank, pay, and allowances of a second lieutenant, oper- 
ated to give the pay clerks of the Marine Corps the pay and allow- 
ances of a second lieutenant of the Army. The reasons therefor will 
not, in my opinion, support Mr. Cooke's view that the same decision 
will warrant the conclusion that field clerks of the Army are en- 
titled to the allowances of a second lieutenant. The act of June 24, 
1910, provided that the clerks to assistant paymasters in the Marine 
Corps ' shall receive the same pay, allowances, and other benefits as 
are now or may hereafter be provided for paymasters' clerks of cor- 
responding length of service in the United States Army ' ; while 
151738—20 2 



18 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 

the act of August 29, 1916, establishing the positions of field clerk 
provides that such clerks having the requisite service as therein 
prescribed ' shall receive the same allowances, except retirement, as 
heretofore allowed by law to pay clerks, Quartermaster Corps.' In- 
asmuch as it had been the decision of the department theretofore 
that pay clerks, Quartermaster Corps, were not entitled under the 
law to fuel and light in kind (Buls. of 1915, No. 5, p. 5, and No. 21, 
p. 7), it follows that field clerks are not entitled to such allowances, 
according to those decisions, no provision having been made for 
them by law in the meantime." 
Ops/ J. A. G. 6-135, May 14, 1917. 

HEAT AND LIGHT: Enlisted men below grade 15 assigned to separate 
public quarters. 

The question was presented whether enlisted men below grade 15, 
when occupying separate public quarters, to which they have been 
assigned by proper authority, are entitled to an allowance of fuel 
therefor. Paragraph 1036, Army Eegulations, 1913, authorizes pre- 
scribed issue of fuel to officers and enlisted men entitled to and occu- 
pying public quarters. Paragraph 1044 contains the following pro- 
vision : 

" Enlisted men below grade 15, paragraph 9, may be assigned to 
separate public quarters whenever the same are available after those 
noncommissioned officers of higher grades have been accommodated 
and when the conditions of service appear to the commanding officer 
to warrant such assignment." 

Held, that when such enlisted men are assigned to and occupy 
separate public quarters, in pursuance of A. R. 1044, they are " en- 
titled to and occupying public quarters" within the meaning of A. 
R. 1036, authorizing the issuance of fuel therefor. 

Ops. J. A. G. 72^10, Apr. 28, 1917. 
MILITIA : Members of Organized Militia in National Guard organizations. 

In certain National Guard organizations responding to the Presi- 
dent's call of March 27, 1917, were found members who had not 
qualified as national guardsmen under section 70 of the act of June 
3, 1916. 

Held) that inasmuch as the President's call of March 25, 1917, ap- 
plied only to the National Guard the soldiers in question, as mem- 
bers of the Organized Militia, were under no obligation to respond 
thereto, and the fact that they appeared for service in the National 
Guard organizations did not operate to create any obligation on the 
part of the Government to pay or provide for them ; and that there- 
fore, while they still remained subject as organized militiamen to 
be called into the Federal service as such, they should be dropped 
from the National Guard rolls for failure to qualify as national 
guardsmen. 

Ops. J. A. G. 58-051.1, Apr. 12, 1917. 

NATIONAL GUARD : Clothing allowance. 

Upon the question whether or not a member of the National Guard 
who was mustered out of the Federal service March 14, 1917, and 
again enters the Federal service under the call of March 25, 1917, is 
entitled, on his reentry into the service " to an initial clothing allow- 
ance." 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 19 

Held, that the muster out of the Federal service from the call of 
June 18, 1916, terminated his Federal service under that call, en- 
titling- him to full settlement for such service; that the reentry into 
the service under the call of March 25, 1917, begins a new period of 
Federal service, and that he is entitled to the benefits of the laws 
applicable thereto as a distinct period of Federal service. 

Held further, that as the law gives him the right to the same pay 
and allowances as a soldier of the Regular Army would receive, he 
should be credited with the regular initial clothing allowance, but the 
value of the clothing supplied him at Federal expense upon reentry 
into the service and which he is permitted to retain should be charged 
against such initial allowance. 

Ops. J. A. G. 58-700, Apr. 27, 1917. 

NATIONAL GUARD: Continuation of active service. 

A soldier in a National Guard organization was, through mis- 
interpretation of the regulations governing the National Guard Re- 
serve, continued in the active service after the expiration of his active 
enlistment, and it was asked whether he might be continued in the 
active service and be allowed pay for the time already served. 

Held, that, while the term of enlistment prescribed by the national- 
defense act would seem to involve an automatic passing to the re- 
serve at the expiration of the active period of enlistment, such a 
deduction can not be held to interfere with the soldier's privilege 
of continuing in the active service, in view of the proviso of section 
69, national-defense act, reading: "that in the National Guard the 
privilege of continuing in active service during the whole of an en- 
listment period * * * shall not be denied by reason of any- 
thing contained in this act": and that since the soldier referred to 
in the inquiry desired to continue in the active service, and actually 
did so, he may properly be regarded as having legally continued in 
active service, his service in that capacity having been accepted by 
proper authority. 

Ops. J. A. G. 58-700, Apr. 28, 1917. 

NATIONAL GUARD: Failure of members of, to respond to call. 

Upon the recommendation that prompt action be taken to appre- 
hend and punish such members of National Guard organizations 
as may have failed to respond to the call of March 25, 1917: 

Held, that the said call embraced only organizations of the Na- 
tional Guard and did not include members of the Organized Militia 
who failed to qualify under the national-defense act of June 3, 1916; 
that by the terms of section 101 of that act " The National Guard, 
when called as such into the service of the United States, shall. 
from the time they are required by the terms of the call to respond 
thereto, be subject to the laws and regulations governing the Regular 
Army "; that their failure to respond renders them punishable under 
the Articles of War for disobeying the orders of the President for 
their mobilization, and, if the circumstances evidence an intent to 
abandon the Federal service, also for desertion ; and that they may 
be charged with either offense, or both, and tried therefor by court- 
martial. 

Ops. J. A. G. 58-132.1, Apr. 19, 1917. 



20 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

OFFICERS' RESERVE CORPS : Signal Corps Section. 

Held, with respect to the construction of section 37 of the national 
defense act of June 3, 1916, as applied to the Signal Corps, that the 
Signal Corps Section of the Officers' Reserve Corps, like the Regular 
Army, should comprise two divisions — i. e., the Signal Corps proper 
and the Aviation Section thereof; that the proportion of officers of 
the several grades in each division should conform to the proportion 
of the respective divisions of the Signal Corps of the Regular Army, 
except in the lowest grade ; and that such proportion will practically 
correspond to the organization now prescribed for the units of the 
respective divisions of the Regular Army. 

Held further, that the organization of the units of the respective 
sections may be proceeded with in the usual manner, provided the 
units, when complete, will not give a proportion of officers in any 
grade of the particular section of the Signal Corps in excess of the 
proportion prescribed in the statute; that the proportion indicated 
by the statute must be maintained in the particular section of the Sig- 
nal Corps as a whole, but need not be maintained in a particular unit 
of that section unless the departure from the proportion in that unit 
would render the composition of the whole section such as to violate 
the rule. 

Ops. J. A. G. 6-301.6, Apr. 13, 21, and 28, 1917. 

PRINTING : Procurement of, for military forces in time of war. 

Held, that the provision in the Army appropriation act approved 
May 12, 1917, amending section 87 of the public printing act of 
January 12, 1895 (28 Stat. 622), and section 2 of the act of June 30, 
1906 (34 Stat. 762), operates to remove, in time of war, the restric- 
tion against the procurement of printing from commercial concerns 
contained in the act of 1895 and the restriction contained in the act 
of 1906 against the use of any appropriations for printing other than 
those made specifically and solely for printing and binding, so that in 
time of war the War Department may procure from commercial or 
other printing establishments necessary printing for the militar}^ 
forces and pay therefor from " available appropriations." 

Held further, that the said amendment of May 12, 1917, does not 
make available the War Department's allotment at the Government 
Printing Office for the procurement of printing by the department 
under contracts with commercial printing establishments. 

Ops. J. A. G. 5-113, May 28, 1917. 

PRISONERS OF WAR: Right to food supplies and furniture taken from 
captured vessel. 

The former commanding officer of an enemy ship in the status of a 
captured vessel of war requested that certain food supplies and certain 
furniture and kitchen utensils be shipped to the members of the crew 
confined at a military post. 

Held, that the proper application of paragraph 64 of the Rules of 
Land Warfare, reading: " Prisoners are only entitled to what is ordi- 
narily used in the captor's country, but due allowances should, if pos- 
sible, be made for differences of habits, and captured supplies should 
be used if they are available," is that captured supplies should be used 
by the Government for the subsistence and care of prisoners and not 
that such captured supplies should be turned over to the prisoners. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AKMY. 21 

Held further, that since the furniture and kitchen utensils pertain 
to the ship itself, and are not private property of the prisoners, the 
Government is under no obligation to deliver them to the captive 
crew. 

Ops. J. A. G. 99-290, May 15, 1917. 

PRISONERS OF WAR: Right to make and sell toys for benefit of Ger- 
man Red Cross. 

Upon a question whether prisoners of war might be permitted to 
make and sell toys for the benefit of the German Ked Cross. 

Held, that there is nothing in any of the conventions to which the 
United States is a party which would impose upon the United States 
a duty to permit prisoners to aid any institutions connected with or 
serving an enemy of the United States in any capacity ; and that the 
existence of any such right on the part of prisoners is negatived by 
that part of article 6 of the Rules of Land Warfare. Hague Conven- 
tion No. 4, of October 18. 1907, reading: " * * * the wages of 
the prisoners shall go toward improving their condition and the bal- 
ance shall be paid to them on their release after deducting the cost of 
their maintenance." thus plainly contemplating that all earnings of 
prisoners shall be retained in the captor country until the termina- 
tion of war. 

Ops. J. A. G. 99-290, May 15, 1917. 

PRIVATE PROPERTY : Claims for loss of, in military service. 

By the act of March 4. 1915 ^38 Stat. 1077), it was provided that 
the act of March 3, 1885, relating to the settlement of claims of 
officers and enlisted men of the Army for the loss of private property 
destroyed in the military service " shall hereafter extend to cover 
loss or damage to the regulation allowance of baggage of officers and 
enlisted men sustained in shipment under orders to the extent of such 
loss or damage over and above the amount recoverable from the car- 
rier furnishing the transportation." The question was presented 
whether this provision applies to all property which may be shipped 
as change-of -station allowance of baggage (including, for example, 
civilian clothing of the claimant officer and wearing apparel of mem- 
bers of his family) or whether its application is limited to such 
articles as might otherwise be certified to the auditor by the Secre- 
tary of War under the original law of 1885. 

Held, that since the provisions of the act of 1885 are, by the act of 
March 4, 1915, extended to the loss or damage to private property in 
shipment, the limitations of the former act are extended, including 
the provision that " the liability of the Government under this act 
shall be limited to such articles of personal property as the Secretary 
of War, in his discretion, shall decide to be reasonable, useful, neces- 
sary, and proper for such officer or soldier while in quarters engaged 
in the public service in line of duty" ; that it is only because of this 
limitation that the Secretary of War is required to make any cer- 
tificate for the auditor in case of the loss of property of officers and 
enlisted men, and that therefore in the preparation of the certificates, 
in cases of loss of baggage, there should be listed only such articles 
as can be properly certified under the act of March 3, 1885. 

Ops. J. A. G. 18-461, Apr. 23, 1917. 



22 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

RESERVE OFFICERS: Not to be assigned as assistants to juniors. 

Upon the question whether a reserve officer of the grade of major 
could be assigned to active service as an assistant to an officer of the 
Regular Army of the grade of captain. 

Held, that since it is provided in section 38 of the national 
defense act that while reserve officers are on active service they shall, 
" by virtue of their commissions as reserve officers, exercise command 
appropriate to their grade and rank in the organizations to which 
thev may be assigned. * * * : Provided, That officers so ordered to 
active service shall take temporary rank among themselves, and in 
their grades in the organizations to which assigned, according to the 
dates of orders placing them on active service : * * * " the ques- 
tion must be answered in the negative. 

Ops. J. A. G. 6-301, Apr. 18, 1917. 

STATUTE OF LIMITATIONS: Trials for desertion. 

On the question raised whether the 39th Article of War (new), 
which became operative March 1, 1917, under the provisions of the 
act of August 29, 1916 (39 Stat. 670), is applicable to a desertion 
committed prior to that date. 

Held, that the article applies to past offenses with respect to which 
the old statute of limitation (103d Article of War) had not run at 
the time of its repeal ; that under the usual rule statutes of limitation 
apply to past offenses (Bishop on Statutory Crimes, 3d ed., sees. 263, 
•_M>;>)', and by some authorities even where an existing statute had 
completely run at the time the new statute became operative; and 
that the proviso to the 39th Article of War, that it "shall not have 
the effect to authorize the trial or punishment for any crime or of- 
fense barred by the provisions of existing law," was inserted to 
limit the application of the article to such past offenses as have not, 
at the time the new statute becomes operative, been "barred by the 
provisions of existing law." 

Held further, that section 5 of the said act of August 29, 1916, 
prescribing "that all offenses committed, and all penalties, forfeit- 
ures, crimes, or liabilities incurred prior to the taking effect of this 
act * * * may be prosecuted, punished, and enforced in the same 
manner and with the same effect as if this act had not been passed," 
does not include such a liability as the liability to trial, but refers 
to liabilities such as to make good time lost, or to some other liability 
imposed by law and not embraced by the terms immediately pre- 
ceding it; that there is nothing in the language of the provision 
to show that it was intended to cover the liabilitv to trial, and that 
in view of the proviso to the 39th Article of War it must be held 
that it has no application thereto. 

Ops. J. A. G. 26-480, Apr. 26, 1917. 

WAR PRISONERS : Pay of officers. 

Under Article CVII, Hague Convention (Appendix 6, Field 
Service Regulations, United States Army, 1914, p. 192) officers taken 
prisoner are entitled to "receive the same rate of pay as officers of 
corresponding rank in the country where they are detained, the 
amount to be ultimately refunded by their own government." 

Held (1 ). that the term "officers," as here used, should be limited 
to "coirmissioned officers of the enemy army and navy who have 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 23 

been taken prisoner in naval or military operations or by process 
of law"; 

(2) That as the rates of pay of officers of the Army and Navy as 
fixed by law are the same for officers of both services having the 
same relative rank as established in paragraph 12, Army Regula- 
tions, 1913, there is no objection to a fixed rate of pay for naval and 
military officers who are taken prisoner, based on the table of rela- 
tive rank as established in said regulations; and, 

(3) That the term "rank," as used in the convention, should be 
regarded as equivalent to "grade," and as so construed there can be 
no objection to adopting as a provisional basis of payment the base 
pay prescribed by law for officers of the corresponding grade of the 
Regular Army of the United States, without longevity increase or 
.allowances. 

Ops. J. A. G. 99-290, May 14, 1917. 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. . 

^NATIONAL GUARD: Additional pay of enlisted men as gunners. 

The question was presented for decision whether enlisted men of 
the Organized Militia or National Guard when brought into the 
service of the United States under the militia act of 1903, as 
amended, or when drafted into the Federal service under section 111 
of the act of June 3, 1916, are entitled to receive additional pay for 
qualifications as first or second class gunners attained prior to their 
being brought into the service of the United States. 

He7d, that inasmuch as the requirements for qualifications as gun- 
ners are the same for the enlisted men in the militia or National 
Guard as for the enlisted men of the Regular Army, and as the 
laws relating to pay give the militia, when brought into the service 
of the United States, the same pay and allowances as are or may be 
provided b} T law for the Regular Army, they are entitled to the 
additional pay as gunners under their qualifications attained prior 
to their being brought into the Federal service, subject to the condi- 
tions imposed by paragraph 1344, Army Regulations, 1913. 

Comp. Treas. July 21, 1916. 

PAY AND ALLOWANCES: Retired officers and enlisted men commis- 
sioned in the National Guard. 

The following questions were presented for decision : 
(a) Whether a retired officer of the Regular Army, appointed as 
an officer of the National Guard and detailed as property and dis- 
bursing officer, can receive the pay as property and disbursing officer 
provided for by section 67, act of June 3, 1916, and the National 
Guard pay provided by section 109, act of June 3, 1916, in addition 
to his retired pay of the Regular Army. 

(A) Whether a retired enlisted man of the Regular Army, ap- 
pointed as an officer of the National Guard and detailed as proper:' 
and disbursing officer, can receive the pay as property and disbursing 
officer provided by section 67 of the act of June 3, 1916, and the 
National Guard pay provided by section 109 of the act cited, in 
addition to his pay as an enlisted man, retired, of the Regular Army. 



24 DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF AEMY. 

Section 74 of the national-defense act of June 3, 1916, speci- 
fying the class from which National Guard officers may be selected, 
includes retired officers of the Regular Army, but does not include 
retired enlisted men except as they may become eligible by enlist- 
ing in the National Guard. 

Held, as to (a), that the effect of the statutory provision for the 
appointment of retired officers of the Regular Army as officers in 
the National Guard is to give a retired officer so appointed the pay 
provided for in sections 67 and 109 of the national-defense act in 
addition to his retired pay in the Army; and, as to (b), that, inas- 
much as the statute does not provide for the entry of retired enlisted 
men into the National Guard, previous decisions are applicable 
(20 Comp. Dec, 49, and 23 Id., 444), which are to the effect that 
the pay of a retired enlisted man of the Army while in the Federal 
service as a member of the Organized Militia or National Guard 
should be discontinued ; in other words, that there is no prohibition 
against the commissioning of a retired enlisted man in the National 
Guard, after his enlistment therein, and then appointing him prop- 
erty and disbursing officer and paying him therefor from the 
amount appropriated from Federal funds, but during such time he 
will not be entitled to continue to draw his retired pay as an en- 
listed man of the Army. Accordingly, question (a) answered in 
the affirmative and question (b) in the negative. 

Comp. Treas. May 21, 1917. 

RETIRED OFFICERS: Pay on being transferred to the active list. 

A retired officer of the Army in the grade of first lieutenant was 
transferred to the active list March 22, 1917, " with the rank of cap- 
tain of Infantry from July 1, 1916," under the provisions of the act 
approved March 4, 1915 (38 Stat. 1068), which authorizes the trans- 
fer of retired officers to the place on the active list which they would 
have had had they not been retired. The officer duly accepted his 
commission as captain, and thereupon the question was presented 
whether he was entitled to the difference in pay between the grades 
of first lieutenant and captain commencing July 1, 1916, the time 
from which his rank as captain dated under the order transferring 
him to the active list. 

Held, that the date when the officer accepted his commission as 
captain, and thereby became invested with the office, was the date 
when the pay as captain commenced, and not before, since the rate 
of pay is attached to the office and not to the rank which the officer 
has. 

Comp. Treas. May 3, 1917. 

RETIRED OFFICERS: Pay under assignment to active duty in time of 
war. 

Section 24 of the national-defense act, approved June 3, 1916, con- 
tains the provision : 

" That in time of war retired officers of the Army will be em- 
ployed on active duty, in the discretion of the President, and when 
so employed they shall receive the full pay and allowances of their 
grade." 

Held, that this provision supersedes previous statutes governing 
the pay of retired officer assigned to active duty in time of war and 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 25 

that under such provision all retired officers of the Army placed on 
active duty in time of war are entitled to the full pay and allowances 
of their grades ; but it has reference only to such officers as are specif- 
ically assigned to active duty of a strictly military character under 
said provision, and does not apply to those detailed as instructors in 
educational institutions. 

23 Comp. Treas. 577; id. 605. 



DECISIONS OF THE COURTS. 

CONTRACTS: Construction of. 

A meat-packing company contracted with the Navy Department 
to furnish to the navy yard at Puget Sound, Wash., or to vessels 
docking thereat, during the fiscal year ending June 30, 1908, certain 
meats, the quantity to be furnished being "165,000 pounds, more or 
less," according to the requirements of the service. The contract con- 
tained this provision : 

" The quantities called for above are only estimated, and the right 
is reserved to exact more than the amount of any article included in 
the above class at the contract price or to accept less than the full 
amount thereof, as the needs of the public service may require." 

After the contract was entered into the President decided to send 
the Atlantic Fleet around the world, and the contractor was re- 
quired, over his protest, to furnish at the contract price meat to ves- 
sels of that fleet touching at the Puget Sound Navy Yard. The 
quantity thus furnished to the Atlantic Fleet was 200,983 pounds, 
which cost the contractor $21,767.80, and for which the contractor 
received from the Government $17,531.71, the price of meat having 
risen subsequent to the date of the contract. The contractor brought 
suit, insisting that its contract only required it to furnish meats to 
the vessels of the Pacific Fleet which might dock at the Puget Sound 
Navy Yard during the fiscal year, and that it could not be required 
to furnish meats at contract rates to the vessels of the Atlantic Fleet 
docking at that station, and that the contractor was therefore en- 
titled to recover from the Government the market price of all meats 
furnished by it to the vessels of the Atlantic Fleet, less the amount 
paid based on the contract price. 

Held, that the claimant could not recover, as there was nothing in 
the contract indicating that the agreement referred only to the re- 
quirements of the Pacific Fleet, and as the quantities of meat to be 
furnished by the contractor depended upon the determination of the 
Chief of the Bureau of Supplies and Accounts of the Navy Depart- 
ment, whose decision as to the quantities of meat to be furnished was, 
by the express terms of the contract, final, and that unless the con- 
tractor had been required to furnish a totally unreasonable amount, 
or unless bad faith was shown, the contractor could not complain, 
the case being governed by the principle laid down in Brawlcy v. 
United States (96 U. S., 168, 172), where the meaning of the words 
" more or less " is discussed thus : 

"If, however, the qualifying words are supplemented by other 
stipulations or- conditions which give them a broader scope or a 
more extensive significance, then the contract is to be governed by 



26 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

such added stipulations or conditions. As, if it be agreed to furnish 
so many bushels of wheat, more or less, according to what the party 
receiving it shall require for the use of his mill, then the contract is 
not governed by the quantity named, nor by that quantity with 
slight and unimportant variations, but by what the receiving party 
shall require for the use of his mill; and that variation from the 
quantity named will depend upon his discretion and requirements 
so long as he acts in good faith.'' 

Carstens Packing Co. v. The United States, decided by the Court 
of Claims May 28,' 1917. 

HORSES : Claims for loss of, in military service. 

In a recent case {Frtcnk M. Andrews v. The United States, de- 
cided Apr. 30, 1917) the Court of Claims disposed of a number of 
claims of officers of the Army for loss of horses in the military serv- 
ice, such suits having been brought under the act of March 3, 1885 
(23 Stat. 350), which provides for the reimbursement of officers 
and enlisted men for the loss of private property in the military 
service under conditions therein specified. (Previous decisions of 
the Court of Claims were in suits brought under other statutes, re- 
lating to horses lost in time of war. See Bui. No. 8, W. D. 1916, p. 
13, and Bui. No. 15, W. D. 1917, p. 15.) The Comptroller of the 
Treasury finallv held in a decision dated October 20, 1913 (20 Comp. 
Dec. 238), that the act of March 3, 1885, did not apply to horses. 
In the recent decision in the Andrews case, the Court of Claims held 
that the act of 1885 does authorize reimbursement to officers for 
horses lost in the military service, in time of peace, under the cir- 
cumstances mentioned in the act. The court defined some of the 
limitations of the act as follows: 

" It does not follow from what has been said that every horse 
privately owned which dies while its owner is in the military service 
can be paid for. Congress did not intend by the provisions of the 
act of 1885 to make the Government an insurer against loss or de- 
struction of a soldier's private property. The officer or enlisted 
man must be in the military service of the United States and the 
loss of his private property must likewise have been in the military 
service, not merely while in the military service but by reason of 
some exigency or necessity of the military service and not incident 
to a horse out of as well as in that service. An analysis of the stat- 
ute in this respect is most succinctly stated by Assistant Comptroller 
Bowers (3 Comp. Dec. 636): 'The loss must have been caused by 
some exigency or necessity of the military service, such as naturally 
would be attributed to and would flow from such service. To establish 
a case under this act the property must have been lost or destroyed 
in the military service; not merely while it was in use in that serv- 
ice, but because it was in that service. Being in that service must 
have been the proximate cause of the loss. The loss must not have 
been caused by the natural wear and tear or deterioration of the 
articles in ordinary use in the service. Inherent defects in articles, 
on account of which they are unable to stand the ordinary strain 
.of the service, will prevent recovery.' 

" Congress by the remedial legislation in issue was providing re- 
imbursement for property lost by reason of the peculiar hazards to 
which it was exposed while in military service, and by so doing did 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 27 

not intend to cover the whole field of accidental loss or destruction in 
no way connected with the dangers incident to military service; 
simply because the soldier had carried his private mount into the 
military service to be used by him in military activities as his mili- 
tary duties required such a use does not of itself render the defend- 
ants liable for its death if the same ensued from any cause not di- 
rectly connected with or incident to military service. * * * While 
the line of demarcation may in some instances be difficult of ascer- 
tainment, still the intendment of the statute is open and apparent. 
The term k in the military service ' has a settled and universally ac- 
cepted legal meaning and would not appear in the act if it was not de- 
signed to limit liability for the loss and destruction of private prop- 
erty occurring by reason of and in the actual performance of military 
duty." 

In view of these limitations certain claims were disposed of as 
follows : 

{//) Where an officer's horse thai had been put in a quartermaster's 
pasture while the officer was away from the post on leave, and it was 
discovered with a serious fracture of its foreleg, necessitating its be- 
ing shot, held, that the officer could not recover, as there was nothing 
in the record to connect the injury with the military service. 

(b) Where an officer's horse was in charge of the Quartermaster's 
Department and being led by an attendant through the streets of 
Seattle, Wash., to be placed on board a transport for shipment to the 
Philippine Islands and was so injured when it slipped and fell on the 
asphalt pavement that it had to be shot, held, that the claimant could 
not recover, as the horse's death was purely accidental, there being- 
nothing in the record to connect the loss with the requirements of the 
act of 1885. 

(<?) An officer's horse died of acute enteritis, which two veterina- 
rians pronounced as having been caused by unwholesome forage pro- 
vided for it by the Government, Held, that the horse was lost in the 
military service due to one of the unavoidable infirmities of the 
military system of feeding military horses, and that the claimant was 
entitled to recover. 

(d) An officer's horse died of cerebrospinal meningitis. He had 
I >een ridden by the officer and "came in rather warm.'' The same 
evening the horse became ill. The next day he developed congestion 
of the lungs and died as the result. Held, that the officer could not re- 
cover, as the horse obviously died from illness not incident to the 
military service. 

Other cases were dismissed because the claimants had not filed a 
claim with the auditor within two years after the loss occurred, as 
required by the act. 

XEASES: Payment of rent by Government. 

The Government leased premises for a post office, and during the 
life of the lease the premises were sold under a mortgage foreclosure. 
Under the terms of the lease the annual rental was payable in quar- 
terly installments on the first days of October. January, April, and 
July. The new owner took title November 23 and claimed the rental 
for the whole of that quarter, payable January 1. The demand was 
refused and the Government apportioned the rental between the 
old and the new owners, the latter being paid only from the date 



28 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

when he took title to the premises, November 23, 1912. In an action 
by the new owner in the Court of Claims, 

Held, that he was entitled to the rent for the whole quarter under 
the Avell-settled common law rule that in cases like this the appor- 
tionment of rent is not allowable, as the rent does not accrue from 
day to day. but only accrues at the time it becomes due under the 
terms of the lease and is indivisible. 

Musselman v. United States, decided by the Court of Claims Mav 
28, 1917. 

PAY AND ALLOWANCES: Longevity pay of members of Medical Reserve 
Corps. 

In the case of Yeamans v. United States, decided by the Court of 
Claims Ma} ? 7, 1917, the plaintiff, while serving as a contract surgeon 
of the Army, had been appointed a member of the Medical Reserve 
Corps in accordance with section 7 of the act of April 23, 1908 (35 
Stat. 66), and he claimed that he was entitled to longevity increase 
upon his services as contract surgeon. Section 9 of the act of April 
23, 1908, provided : 

" That officers of the Medical Reserve Corps, when called upon 
active duty in the service of the United States, as provided in sec- 
tion 8 of the act. shall be subject to the laws, regulations, and orders 
for the government of the Regular Army, and during the period of 
such service shall be entitled to the pay and allowances of first 
lieutenants of the Medical Corps with increase for length of service 
now allowed by law, said increase to be computed only for time of 
active duty." 

Held, that this legislation was prospective in its character and 
operation and does not contemplate the computation of former serv- 
ice in fixing the longevity pay of the officers rendering service in 
the Medical Reserve Corps; that the plain meaning of the language 
quoted is that officers of the Medical Reserve Corps shall only re- 
ceive longevity pay while they are on active duty in the active serv- 
ice of the United States in the Medical Reserve Corps, and that no 
service performed elsewhere, even though performed in other 
branches of the military service, can be computed in determining the 
longevity pay provided for in this statute. 



BULLETIN 42. 

OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ALLOTMENT OF PAY : Purchase of liberty bonds. 

On the question raised as to the legality of waiving the provisions 
of paragraph 1347, Army Regulations, restricting allotment privi- 
leges as to soldiers serving within the United States, so as to permit 
allotments to banking institutions for the purchase of liberty bonds. 

Held, that, as the statute pursuant to which the regulation was 
made (sec. 16, act of Mar. 2, 1899, 30 Stat. 981), authorizes the Sec- 
retary of War " to permit enlisted men of the United States Army to 
make allotments of their pay, under such regulations as he may pre- 
scribe, for the support of their families or relatives, for their own 
savings, and for other purposes, during such time as they may be 
absent on distant duty, or under other circa instances warranting such 
action" the language being broad enough to authorize allotments of 
pay for "the purposes proposed, there can be no legal objections to 
the issue of instructions authorizing such allotments to be made, and 
that such instructions will operate as a modification of the regulations 
so as to permit of the allotments for the purposes in view. 

Ops. J. A. G. 72-260, June 13, 1917. 

AVIATION OFFICERS: Travel orders. 

On the question whether the action of the Secretary of War in 
authorizing the Chief Signal Officer " to issue orders to officers in the 
aviation section, Signal Corps, under his immediate command, direct- 
ing journeys on duty in connection Avith the aviation service of the 
Army," extends to officers of the aviation section, Signal Officers' 
Reserve Corps, under the command of the Chief Signal Officer, trav- 
eling on duty in connection with the aviation service of the Army. 

Held, that the authority conferred has reference to the provisions 
in the Army appropriation act, approved May 12, 1917, providing: 
" That mileage to officers in the aviation section, Signal Corps, travel- 
ing on duty in connection with aviation service shall be paid from the 
appropriation for the work in connection with which the travel is 
performed ;" and that the provision of this act was evidently intended 
to apply to all travel and duty in connection with the aviation service 
whether performed by regular or reserve officers of the aviation sec- 
tion, Signal Corps ; and that the authority in question should be con- 
strued as extending to officers of the aviation section, Signal Officers' 
Reserve Corps, when traveling on duty in connection with the avia- 
tion service of the Army. 

Ops. J. A. G. 94-210, June 13, 1917. 

BONDS OF DISBURSING OFFICERS: Reserve officers. 

On the question raised as to the proposed action of the Chief of 
Ordnance in requiring reserve officers assigned to duty as disbursing 
officers to execute official bonds in limited amounts for the protection 
of the United States, 

29 



30 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 

Held, that there can be no legal objection to the proposed action; 
that it is well settled that heads of departments, although there be 
no statutory provision directing such action, may require bonds from 
officers for the protection of the United States; and that where pub- 
lic property is intrusted to individuals, although there is no law re- 
quiring a bond, the head of a department may properly require one, 
citing Dig. Ops. J. A. G. 1912, 198. 

Ops. J. A. G. 12-110, June 15, 1917. 

CONTINUOUS-SERVICE PAY : Delay in reenlistment. 

In the case of a sergeant detailed as instructor of the National 
Guard who was discharged as such to accept a commission in the Na- 
tional Guard and within three mouths after his discharge applied 
for information as to whether he could "reenlist and be redetailed 
as sergeant-instructor," adding, "if authority is granted I will make 
proper application for reenlistment ;" and owing to delay in delivery 
of the letter advising him that he could reenlist and be redetailed as 
requested his reenlistment was not accomplished within the period of 
three months, 

Held, on the authority of the decision of the Comptroller of the 
Treasury, dated June 16, 1914 (W. D. Bui. 33, p. 10), to the effect that 
where a soldier made application for reenlistment before the expira- 
tion of the three months' period, "but on account of delays apparently 
for the convenience of the Government and without his fault," the 
enlistment was not accomplished within the prescribed period, the 
soldier " was entitled to have his reenlistment take effect before the 
expiration of said three months' period and was entitled to the benefit 
of his prior service in computing his pay for continuous service:" 
that the case in reference comes within the reasons of this decision 
of the comptroller inasmuch as the soldier in his request for informa- 
tion stated that if the authority was granted he would " make proper 
application for reenlistment ;" and that his letter making such request 
should be regarded as his application for reenlistment, and as bring- 
ing him within the decision of the comptroller of June 10, 1911. 
■supra; and, therefore, that the soldier should be viewed as having 
reenlisted within three months after the date of his muster out so as 
to entitle him to the full benefits of continuous service. 

Ops. J. A. G. 72-220, June 1, 1917. 

DENTAL CORPS: Appointments. 

With referent e to the requirement of the act of March 3, 1911 (30 
Stat. 1051), prescribing that appointees to the Dental Corps must be 
"graduates of a standard dental college," and the opinion of the 
Judge Advocate General of September 25, 1910, that certain institu- 
tions which were disqualified to confer degrees by reason of noncom- 
pliance with the laws of the State as to filing evidence as to their 
equipment, faculty, and other facilities for instruction, should not be 
recognized as standard colleges, additional facts were submitted 
showing that the particular college, since.the prior decision, had com- 
plied with the requirements of the State law on the subject and been 
recognized by the proper State authorities as an institution having a 
standard course and as qualified to confer degrees in dental surgery, 
it further appearing that the college is one of the oldest dental 
schools in the world; that the failure to comply with the require- 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 31 

nients of the State law was due to inadvertence; and that the equip- 
ment of the college respecting property, faculty, and other facilities 
for instruction, during the period preceding its recent qualification 
under the State law was substantially identical with its existing equip- 
ment in these respects. 

Held, that if the department is satisfied that these representations 
respecting the equipment of the institution during the period preced- 
ing its recent recognition by the State authorities is correct, the grad- 
uates of that institution-who were graduated during such period may 
be recognized as graduates of a standard dental college within the 
meaning of the act of March 3, 1911. 

Ops. J. A. G. 6-227.8, May 24, 1917. 

DESERTION IN TIME OF WAR: Expenses of trial; Place of trial. 

Desertion in time of war being a capital offense punishable by 
death, or such other punishment as a court-martial may direct, and 
the use of depositions in such a case not being authorized except on 
the part of the defense, . 

Held* that since trials for desertion in time of war will ordinarily 
entail greater expense than trials for desertion in time of peace, com- 
manding officers and all others concerned should be more than ever 
vigilant to see that charges for desertion in time of war are rigidly 
investigated and full and complete reports made with reference 
thereto for the information of department commanders. 

Held further, that department commanders should be instructed to 
take into consideration the expense involved in procuring the per- 
sonal attendance of witnesses, in addition to any items of expense here- 
tofore considered, in determining whether alleged deserters in time 
of war shall be tried where they may be returned to military control, 
at the place where their commands may be serving, or whether they 
shall be sent to the United States Disciplinary Barracks, Fort Leav- 
enworth, Kans.. or to the Pacific branch thereof at Alcatraz, Cal., 
for trial. 

Ops. J. A. G. 26-800, June 20, 1917. 

FIELD CLERKS : Hunting leave. 

In view of the department's ruling that Army field clerks and 
field clerks, Quartermaster Corps, are entitled to the benefits of the 
leave laws applicable to commissioned officers of the Army, the ques- 
tion was presented whether such clerks are entitled to the hunting 
privilege provided by Army Regulations 65 and 66. 

Held, that inasmuch as the leave allowance of officers is limited 
by statute, the so-called hunting privilege provided by the regula- 
tions can only be justified on the ground that it produces results of 
a military value, and that as the reasons underlying the granting of 
such leave to officers who are professional soldiers do not apply to 
field clerks, such clerks can not legally be granted leave to hunt under 
the said regulations in addition to their statutory leave. 

Ops. J. A. G. 2-126, June 8, 1917. 

FIELD CLERKS: Purchase of subsistence supplies from Quartermaster 
Corps. 

The question was presented whether acting Army field clerks are 
entitled to the privilege of purchasing food supplies from the Quar- 
termaster's Department. The term " acting Army field clerk " is 



32 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

applied to the temporary headquarter's clerks employed during the 
continuance of the existing emergency. 

Held, that the statutes and regulations which authorize the sale of 
subsistence supplies to " officers and enlisted men " may properly be 
given a liberal application so as to include Army field clerks provided 
for by the act of August 29, 1916 (39 Stat. 625), inasmuch as Army 
field clerks are officers with a regular military status, although not 
commissioned officers; but as to the clerks temporarily employed and 
designated " acting Army field clerks,'' these are merely civilian em- 
ployees and have no status as officers within the purview of the stat- 
utes relating to the sale of subsistence supplies to officers and enlisted 
men of the Army. Such acting Army field clerks may purchase sub- 
sistence supplies from the Quartermaster's Department only as civil- 
ians, under Army Regulations 1245. 

Ops. J. A. G. 80-131, June 14, 1917. 

INSANE OF ARMY: Appropriation for care. 

On the question submitted as to whether the Surgeon General is 
authorized to make arrangements with private institutions for the 
tare of insane still in the military service under the appropriations 
" Medical and Hospital Department," containing an item " for medi- 
cal care and treatment not otherwise provided for, including care 
and subsistence in private hospitals, of officers and enlisted men, 
when entitled thereto by law, regulation, or contract," it being stated 
that the Government Hospital for the Insane is " taxed to its utmost 
capacity;" that the patients contemplated to be treated in private 
hospitals are those who will suffer temporary mental aberrations due 
to the incidents of trench warfare; that under proper conditions, 
if treated in psychopathic institutions where they can have the bene- 
fit of the special provisions therein made for the mentally deranged, 
they will be wholly restored to normal and to a duty status after a 
brief period of treatment ; and that it is the purpose to send to the 
Government Hospital for the Insane those whose insanity turns out 
to be of a more permanent nature, • 

Held, that the appropriation referred to is broad enough to au- 
thorize arrangements for the treatment of insane officers and enlisted 
men of the Army who, because of the limited facilities of the Gov- 
ernment Hospital for the Insane, can not properly be treated there ; 
and that there is no legal objection to making arrangements as pro- 
posed for the treatment in private institutions of those temporarily 
deranged because of the conditions of service, such action being based 
on the inadequate facilities of the Government Hospital for the 
Insane to care for these patients. 

Ops. J. A. G. 44-200, June 6, 1917. 



DECISIONS OF THE COMPTROLLER OE THE TREASURY. 

CIVILIAN EMPLOYEES: Five and 10 per cent increase in compensation. 

The provision for a 5 and 10 per cent increase of pay to civilian 
employees of the Military Establishment, during the fiscal year 1918, 
reads : 

" That during the fiscal year nineteen hundred and eighteen, all 
civilian employees in the Military Establishment, including on the 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 33 

lump-sum rolls only those persons who are carried thereon at the 
close of the fiscal year ending June thirtieth, nineteen hundred and 
seventeen, shall receive increased compensation at the rate of 10 per 
centum per annum to such employees who receive salaries or wages 
in such establishment at a rate per annum of less than $1,200, and 
increased compensation at a rate of five per centum per annum to 
such employees who receive salaries or wages in such establishment 
at a rate of not more than $1,800 per annum and not less than $1,200 
per annum." 

With reference to a similar provision affecting the Naval Estab- 
lishment, the following questions relating to per diem employees 
were presented : 

(a) Shall extra pay earned by overtime work be disregarded in 
computing 5 and 10 per cent increase of compensation, the increase 
being determined by crediting each eligible emplo3 r ee with 5 or 10 
per cent, as the case may be, of his regular per diem rate for each day 
worked ? 

(b) If the increase of compensation is to be based upon the total 
pay received, including overtime work, shall the amount of pay re- 
ceived by any employee during a pay period be considered as bearing 
the same proportion to his annual pay as the number of days worked 
in such pay period bears to the number of working days per year? 

Held as follows : 

" Under the provision of this law the rate and not the amount of 
compensation is made the determining factor as to whether or at 
what rate the increase is to be paid, and a per annum rate is made the 
basis. 

"A salary at the rate of $1,200 per annum is equivalent to $100 per 
month and $3.33^ per day, and a salary at the rate of $1,800 per 
annum is equivalent to $150 per month and $5 per day. Therefore, in 
determining a per diem employee's right to the increase it is these 
per diem rates that are to be considered and not the amount of an- 
nual compensation that he may receive at the rate paid to him. 

" The number of days he may work during the year and the 
overtime work do not affect the question. 

" If a per diem employee of the class referred to in the above- 
quoted law receives compensation at a rate less than $3.33^ per 
day, he will be entitled to the 10 per cent increase; for instance, if 
his rate of compensation is $3.30 per day, he will be entitled to an 
increase of 33 cents for each day's work performed, regardless of 
whether he may work 365 days or only 200 days during the year; 
likewise, if his rate of compensation is not less than $3.33^ per day 
and not more than $5 per day, he will be entitled to the 5 per cent 
increase ; and if his rate of compensation is more than $5 per day he 
will not be entitled to any increase, even though the total compensa- 
tion received by him during the year does not exceed $1,800. 

" The increase will be allowed on overtime work as well as on 
regular work, provided the rate paid for overtime work on an 
eight-hour basis is not more than $5 per day." 

"Comp. Treas. May 26, 1917. 

In another case the question was presented whether pieceworkers 
are entitled to the benefits of the said act, and, if so, upon what basis 
the percentage of increase should be computed. 

151738—20 3 



34 DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF ARMY. 

Held, that pieceworkers are to be classed as being paid wages 
and that the provision for increased compensation is applicable to 
them upon the following basis: 

" Payment is made for piecework after the doing of it, but the 
value of the labor in the doing of it is ascertained approximately 
and the compensation fixed for it before the doing of it. In fixing 
the compensation for the labor, certain elements must have been 
considered, and they become the basis of the compensation, among 
them being the quantity the average employee could do in a given 
period. On this basis a rate of compensation per day may be 
ascertained. 

"It is understood that eight hours constitute a workday for these 
employees. If so, the amount of compensation earned during said 
period at the established piece rates is the rate of pay for the day. 
This rate forms the basis of computing the percentage increases. 
If it is less than $3.33^, the increase will be at the rate of 10 per 
cent ; if it is not less than $3.33^ and not more than $5, the increase 
will be at the rate of 5 per cent; and if it is more than $5, no per- 
centage increase will be paid." 

Comp. Treas. May 28, 1917. 

LEASE OF LANDS : Payment of rent in advance. 

A lease of a tract of land by the Signal Corps for aviation pur- 
poses provided for payment of the rent in advance. The question 
was raised whether advance payment was not in violation of section 
3618, Revised Statutes, which prohibits the advance of public money 
" in any case whatever." In 12 Comp. Dec. 782, it was held, in sub- 
stance, that in the matter of naked lands leased to the Government, 
where the leased lands have been placed in the possession of the Gov- 
ernment by the lessor, the Government has obtained all it contracts 
for under the lease, and hence a payment of rental at such time is 
not a payment in violation of section 3648, Revised Statutes. Upon 
reconsideration of this question, 

Held, that in the case of naked lands leased by the Government 
it would seem that the purpose and spirit, if not the plain letter, 
of the law are against payment of the rent in advance, and that 
therefore the decision in 12 Comp. Dec, 782, is modified so that here- 
after " payment of rent in advance by the month, year, or quarter 
for naked lands leased to the Government will not be recognized by 
the accounting officers." 

Comp. Treas. May 23, 1917. 

NATIONAL GUARD : Pay of enlisted men refusing to take Federal oath. 

Where an enlisted man of the Organized Militia called out in the 
national defense refused to take the Federal enlistment oath pre- 
scribed in the act of June 3, 1916, or to be formally mustered into the 
Federal service, but who was treated in all respects as a member of 
the organization in that service and was required to perform all the 
duties of a soldier from the date of his enlistment to the date of his 
muster out, 

Held, that he was entitled to pay as a member of the organization 
during the period referred to. 

Comp. Treas. May 12, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 35 

PAY OF ENLISTED MEN: Foreign-service increase. 

The question was presented whether in the case of enlisted men the 
'20 per cent increase for foreign service provided for by the act of 
June 30, 1902 (32 Stat. 512). is to be computed on the monthly in- 
crease of pay authorized by the act of May 18, 1017. The a< t of 1902 
authorizes the payment to enlisted men of 20 per cent increase for 
foreign service, such increase to be "over and above the rates of pay 
proper as fixed by law for time of peace' 1 ''; and the act of May is. 
1917, provides that the monthly increases therein authorized are to 
continue only until the termination of the emergenc;/. 

Held, that as the rates of pay " as fixed by law for time of peace " 
do not include monthly increases provided for by the act of May 18. 
1917. which are war increases, such monthly increases can not enter 
into the computation of the 20 per cent increase provided for foreign 
service. 

Comp. Treas. May 29, 1917. 

PRIVATE PROPERTY : Claim for loss in military service. 

In connection with a recent claim of an officer of the Army for the 
loss of private property in the military service the Comptroller of 
the Treasury placed upon the act of March 3, 1885 (23 Stat. 350), 
a construction which materially restricts the operation of the act 
in comparison with the practice under decisions heretofore in effect. 
The act provides for the settlement under conditions therein pre- 
scribed for the loss, " except in time of war or hostilities with In- 
dians," of private property of officers and enlisted men under the 
following- circumstances : 

" First. When such loss or destruction was without fault or negli- 
gence on the part of the claimant. 

" Second. Where the private property so lost or destroyed was 
shipped on board an unseaworthy vessel by order of any officer 
authorized to give such order or direct such shipment. 

" Third. Where it appears that the loss or destruction of the pri- 
vate property of the claimant was in consequence of his having 
given his attention to the saving of the property belonging to the 
United States which was in danger at the same time and under simi- 
lar circumstances." 

Held, by the comptroller, that when a claim of an officer or en- 
listed man of the Army for the value of his private property lost 
or destroyed in the military service is presented within two years 
from the occurrence of the loss or destruction, and it appears that 
the loss or destruction was not " sustained in time of war or hostili- 
ties with Indians," and " was without fault or negligence on the part 
of the claimant," said act of March 3, 1885, provides for payment 
under two and only two circumstances, namely : 

1. " Where the private property so lost or destroyed was shipped 
on board an unseaworthy vessel by order of an officer authorized 
to give such order or direct shipment. 

2. " Where it appears that the loss or destruction of the private 
property of the claimant was in consequence of his having given 
his attention to the saving of the property belonging to the United 
States which Avas in danger at the same time and under similar cir- 
cumstances." 



36 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

This construction is a return to an early construction of the act 
announced by the Second Comptroller of the Treasury under date 
of Xovember 8, 1893, and is based upon an examination by the comp- 
troller of the legislative history of the statute which was resorted to 
in view of the ambiguity of the statute, as evidenced "by the fact 
that the comptrollers who held office for 30 years after the law passed 
reached many different conclusions as to its meaning." 

Comp. Treas. May 7, 1917. 

TRANSPORTATION: Officers' baggage allowances. 

Where a captain of the Philippine Scouts was retired with the 
pay and allowances of a master signal electrician of the Army, as 
provided by section 26 of the national- defense act of June 3, 1916: 

Held, that he was entitled to the transportation, from his last duty 
station to his home, of the baggage allowance of a captain, as pro- 
vided by Army Regulations 1136 and 1137. 

Comp. Treas. June 6, 1917. 



BULLETIN 49. 

OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CAMPAIGN BADGES : Issue of, to members of training camps. 

A candidate for a commission while serving in the reserve officers' 
training camp applied for a campaign badge for service rendered 
during the Philippine insurrection. Upon the question whether 
members of training camps are in the military service in such man- 
ner as would justify the issuance of campaign badges, 

Held, that since members of training camps are enlisted in the 
service of the United States, though only for a term of three months, 
they are members of the military force of the United States, and 
that campaign badges, being authorized as a part of the uniform, 
could properly be issued to them as a part of the uniform which they 
are entitled to wear in the service of the United States. 

Ops. J. A. G. 46-321, June 30, 1917. 

CLAIMS FOR PRIVATE PROPERTY : Commencement of war. 

Upon the question raised as to the " date of commencement of the 
present war*' with reference to the action which should be taken on 
claims of officers and enlisted men for property destroyed in the 
military service under the act of Congress approved March 3, 1885, 
providing that the act " shall not apply to losses sustained in time 
of war or hostilities with Indians," 

Held, that the date of the commencement of the present war should 
be regarded as the date of approval of the joint resolution of Con- 
gress of April 6, 1917 (Pub. No. 1, 65th Cong.), formally declaring 
a state of war as existing between the United States and the Imperial 
German Government. 

Ops. J. A. G. 18^61, June 30, 1917. 

CONTRACTORS: Relief on the ground of hardship. 

The question was submitted as to whether or not the decision of 
the comptroller, dated May 24, 1917, construing the contract of F. 
H. Leggett & Co. for the delivery of flour to the Marine Barracks, 
Port Royal, S. C, is applicable to similar contracts of the Quarter- 
master Corps for fuel, forage, etc. The decision of the comptroller, 
after citing the provisions of the contract requiring the contractor 
to furnish, at the stipulated price, such quantities of flour "as may 
he required" during the period specified, and showing that the esti- 
mated quantity was based simply on "normal conditions," and that 
it was contemplated that the "quantity stated will be increased or di- 
minished as the necessities * * * may demand," held that the fact 
that the market price of flour has materially advanced, and that the 
quantity of flour required to meet the needs of the service is largely 
in excess of that required under normal peace conditions, do not 
furnish any legal basis for relieving the contractor of his obliga- 
tion to furnish all the flour required at that post. The decision of 
the comptroller is in line with the decision of the Court of Claims in 

37 



38 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

the case of Carstens Packing Co. v. United /States, decided May 28, 
1917, a digest of which decision appears on page 17 of Bulletin 34, 
dated June 8, 1917 (ante p. 25). Upon the question submitted. 

Held, that the decision of the comptroller and the decision of 
the Court of Claims in the cases referred to above should be applied 
by disbursing officers to contracts of the Quartermaster Corps for 
fuel, forage, etc., where the terms are substantially the same and 
the circumstances are similar; and that if the facts and circum- 
stances of the particular case appear to make these decisions inap- 
plicable, the matter should be submitted to the department for con- 
sideration. 

Ops. J. A. G. 76-700, July 13, 1917. 

ENLISTMENTS: Continued in force during war. 

Upon questions (a) whether soldiers could legally be discharged 
by reason of expiration of term of enlistment subsequent to the 
passage of the act of May 18, 1917, and (b) whether that act was 
effective to continue in force enlistments in the National Guard. 

Held, that question (a) must be answered in the negative since 
the provision container! in section 7 of the act of May 18, 1917, 
reading : 

"All enlistments, including those in the Regular Army Reserve, 
which are in force on the date of the approval of this act and which 
would terminate during the emergency, shall continue in force dur- 
ing the emergency unless sooner discharged; but nothing- herein 
contained shall be construed to shorten the period of any existing 
enlistment." 

is an inhibition against discharges unless ordered by the Secretary 
of War under his general power to grant discharges in the interest 
of the Government, and since the soldier's enlistment is prolonged 
for the period of the emergency by the provision quoted, a dis- 
charge for the purpose of immediate enlistment would involve ad- 
ministrative labor and a multiplication of records without any 
resultant benefit to the Government. 

Held further as to question (5), that since the provision quoted 
is applicable to " all enlistments," it is applicable to enlistments 
in the National Guard, they being* enlistments in the National Guard 
of the United States as well as the National Guard of a State ; and 
the question is answered in the affirmative. 

Ops. J. A. G. 28-240, June 2, 18, 1917. 

NATIONAL GUARD: De facto property and disbursing officer. 

In the case of an administrative staff officer who, not being an 
officer of the National Guard, was ineligible for appointment as 
property and disbursing- officer under section 67, national-defense 
act of June 3, 1916, upon his application for action by way of con- 
firmation of his official act as property and disbursing officer, 

Held, that no confirmation in his case would be required; that the 
acts of the officer as the de facto incumbent of the office must be re- 
garded as valid (29 Cyc. 1389, etc.; 8th A. and E. Encvc of Law. 
806) and that as there was no de jupe claimant to the office for the 
time under consideration, the officer would be entitled to retain the 
salary paid to him while the de facto incumbent of the office. 

Ops. J. A. G. 58-213, June 28, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 39 

NATIONAL GUARD: Final statements. 

In the case of an enlisted man of the Texas engineers who, without 
a discharge from that organization but prior to the muster into the 
Federal service of that organization, enlisted in the National Guard 
of another State, and after his arrival in Texas was apprehended, 
tried, and sentenced for fraudulent enlistment, and subsequently was 
released on probation and furnished transportation to his home in 
Texas; on the question as to the date from which final statements 
should be made out for the Texas organization, 

Held, that the date he was apprehended and taken into military 
custody — November 16, 1916 — should be the date from which he 
should be given final statements with respect to his service in the 
Texas organization. 

Ops. J. A. G. 72-200, July 10, 1917. 

NATIONAL GUARD: Reenlistments of noncommissioned officers. 

In the case of a corporal of a National Guard organization who, 
with others, was mustered out of the Federal service April 13, 1917, 
because of refusal to subscribe to the oath prescribed by the national- 
defense act of June 3, 1916, and who applied June 5, 1917, for reen- 
listment, and upon signing the dual oath was restored to duty; on 
the question whether he should be carried as and receive the pay of a 
corporal or a private, it being stated that the company has its full 
complement of noncommissioned officers, appointed since the muster 
out of a portion of the company, 

Held, that he is to be regarded as having reenlisted June 5, 1917, 
and that, as there is no vacancy in his company as corporal, he must 
be carried as and receive the pav of a private. 

Ops. 6-151.1, June 23, 1917. 

OFFICERS : Transfer under provisions of section 25 of the national-de- 
fense act. 

Upon the question whether an officer transferred to another arm 
under the provisions of section 25 of the national-defense act subse- 
quent to May 15, 1917, would be given a place on the lineal list of 
that arm determined by his relative rank on the passage of the bill 
June 3, 1916, or determined by his relative rank at the date of his 
actual transfer, 

Held, that the purpose of the fifth proviso of section 25 of the 
national-defense act, reading: 

" That for the purpose of lessening as much as possible inequalities 
of promotion due to the increase in the number of officers of the line 
of the Army under the provisions of this act, any vacancies created 
or caused by this act in commissioned grades below that of lieutenant 
colonel in any arm of said line may, in the discretion of the Presi- 
dent and under such regulations as he may prescribe in furtherance 
of the purpose stated in this proviso, be filled by the promotion or 
transfer without promotion of officers of other branches of the line 
of the Army; * * * " 

is limited to lessening inequalities of promotion due to the increase 
in the number of officers of the line of the Army under the provisions 
of the national-defense act; that the only inequalities of promotion 
which could result from the addition of officers would be inequali- 



40 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

ties between arms, and not inequalities between individuals within 
either of the arms; that the purpose of the statute, therefore, is to 
authorize transfer from the arm receiving the smaller increase to 
the arm receiving the larger increase, thus increasing the promotion 
in one arm and at the same time decreasing it in the other, and so 
producing an equality or a nearer approach thereto. Therefore, the 
statute does not address itself to equalizing or benefiting the persons 
transferred. Equity dictates, however, that the regulations made 
by the President for such transfer shall be equity to officers trans- 
ferred. This has been done by prescribing that the officer transferred 
shall retain his relative rank at the date of the transfer. The in- 
creases authorized by the national-defense act were by the act itself 
divided into increments, and it is but a logical conclusion that each 
increment should constitute a separate and distinct addition to the 
Regular Army, except when two or more are added at the same time 
as has been those on May 15, 1917. When the first increment was 
added, certain vacancies which were thereby caused or created on July 
1, 1916, were reserved for officers who were to be transferred when 
their eligibility should be determined. There was, therefore, nothing 
in the way of assigning to those officers when transferred constructive 
dates of transfer corresponding with the vacancies Avhieh existed on 
the dates constructively adopted and were reserved for those officers. 
All vacancies to which transfers might be made which were created 
or caused by the first increment have now been filled, and there are 
therefore no vacancies created or caused by that increment to which 
the transfer of an officer can relate back in fixing a constructive date 
of transfer. Therefore, officers now transferred to another arm under 
the proviso quoted must take the relative rank which they had when 
the vacancies to which they are transferred occurred, there being no 
authority of law for disturbing, in order to benefit officers transferred 
to vacancies created by other increments, the relative rank established 
bv the completion of the first increment. A disturbance of the rela- 
tive rank established by the completion of the first increment would 
not lessen the inequalities of promotion due to the increase in the 
number of officers of the line of the Army as defined above, and 
therefore would not come within the purpose or authority of the 
national-defense act. 

Ops. J. A. G. 82-200, May 23, 1917. 

RATION SAVINGS: Expenditure of. 

A detachment of soldiers kept a cow for the production of milk for 
the detachment mess, and the question was presented whether it was 
legal to purchase feed for the cow from the ration savings in view 
of the requirement of paragraph 1220, Army Regulations, that " such 
savings shall be used solely for the purchase of articles of food." 

Held, that the purpose of the regulation being simply to require 
that funds appropriated by Congress for the subsistence of soldiers 
shall be used for no other purpose, either directly or indirectly, the 
expenditure of ration savings for feed for the cow under the circum- 
stances would not be in violation of the regulation, such expenditure 
resulting in the procurement of milk for the soldiers. 

Ops. J. A. G. 40-211, June 30, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 41 

RESERVE OFFICERS' TRAINING CORPS: Commutation of subsistence. 

Upon the question as to whether in ease the exigencies of the serv- 
ice require the relief of the professor of military science and tactics 
at an institution at which one or more units of the senior division of 
the Reserve Officers' Training Corps have been established, leaving 
on duty only enlisted men detailed under section 46 of the national- 
defense act, in the absence of a commissioned officer can the " mili- 
tary training prescribed by the Secretary of War " under section 50 
of the national defense act of June 3, 1916, be so carried on as to 
entitle the members of the senior division at the institution, who have 
complied with all requirements so far as they are concerned to be paid 
the commutation of subsistence provided by said section 50. 

Held, that the presence of an officer of the Army, active or retired, 
a^ professor of military science and tactics is a condition for the 
maintenance of a unit of the training corps under instruction at the 
particular institution; and that, in the absence of such instruction, 
the " military training prescribed by the Secretary of War," as con- 
templated by the national defense act, can not be carried on so as to 
entitle the members of the senior division of such training corps to 
be paid the commutation of subsistence provided by section 50 of 

1 Ops. J. A. G. 56-100, July 2, 1917. 
VETERINARY SURGEONS: Age qualifications for appointment. 

The question was presented whether the provision of the act of 
May 12, 1917 (Army appropriation act), amending section 24 of the 
national-defense act, so as to provide new age limits for appointments 
to the grade of second lieutenant, affected the eligibility for appoint- 
ment as assistant veterinarians under section 16 of the national- 
defense act. 

Held, that, since the provision of section 16 of the national-defense 
act governing the eligibility of persons for appointment as assistant 
veterinarians is not dependent upon or affected by the provisions 
governing the eligibility for appointment as second lieutenant found 
in section 24 of that act, the amendment of section 24 by the act of 
May 12, 1917, does not affect the provision relative to appointments 
as assistant veterinarians found in section 16 of the national defense 

Ops. J. A. G. 64-261, June 23, 1917. 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 
CIVILIAN EMPLOYEES: Compensation. 

With reference to the provisions in the various annual appropri- 
ation acts for the fiscal years 1918 for 5 and 10 per cent increases 
in compensation of civilian employees, 

Held, that persons employed by the Government from day to day, 
or to do a particular job, or whose compensation is not fixed by law 
or regulation, but by agreement at the time when the services are 
engaged, are not entitled to the percentage increases of compensa- 
tion under the statutes referred to, such persons not being employees 
of the United States within the meaning of such statutes. 

Comp. Treas. June 28, 1917. 



42 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 
CIVILIAN EMPLOYEES: Medical and hospital treatment. 

Section 9 of the injured-employees' compensation act of Septem- 
ber 7. 1916 (39 Stat. 743), provides: 

" That immediately after an injury sustained by an employee while 
in the performance of his duty, whether or not disability has arisen, 
and for a reasonable time thereafter, the United States shall furnish 
to such employee reasonable medical, surgical, and hospital services 
and supplies unless he refuses to accept them. Such services and 
supplies shall be furnished by the United States medical officers and 
hospitals, but where this is not practicable shall be furnished by pri- 
vate physicians and hospitals designated or approved by the com- 
mission and paid for from the employees' compensation fund. If 
necessary for the securing of proper medical, surgical, and hospital 
treatment, the employee, in the discretion of the commission, may 
be furnished transportation at the expense of the employees' compen- 
sation fund." 

Held, that under this act United States hospitals and facilities are 
free to injured employees of any department of the Government, and 
that the appropriations for the various executive departments or 
other Government establishments or services may not lawfully be 
reimbursed from the compensation fund provided for injured Gov- 
ernment employees for the cost of medical or hospital treatment of 
such employees unless such treatment was furnished by private 
physicians or hospitals at the cost of the executive department, es- 
tablishment, or service seeking reimbursement. 

Comp. Treas. June 27, 1917. 

CIVILIAN" EMPLOYEES: Pay while attending- reserve officers' training 
camps. 

Held, that an employee of the United States on leave of absence 
and attending an officers' training camp as a candidate for a com- 
mission in the Officers' Reserve Corps of the Army may not lawfully 
receive his regular compensation as a civilian employee for such 
period in addition to pay as such candidate when the annual rate of 
the combined compensation so received exceeds $2,000, in view of 
the act of August 29, 1916 (39 Stat. 582), amending section 6, act 
of May 10, 1916; and further, that he can not elect to refuse his 
military pay in order to accept the pay of his civil position. 

Comp. Treas. June 25, 1917. 

EIELD CLERKS: Compensation. 

The question was presented whether Army field clerks and field 
clerks. Quartermaster Corps, are entitled to the benefits of the pro- 
vision in the Army appropriation act, approved May 12, 1917, for 5 
and 10 per cent increases in the compensation of " all civilian em- 
ployees in the Military Establishment." 

Held, that Army field clerks and field clerks, Quartermaster Corps, 
not being regarded as civilian employees, they are not entitled to the 
benefits of the statute mentioned. 

Comp. Treas. June 14 and 27, 1917. 

OFFICERS' RESERVE CORPS: Mileage. 

Upon the question whether officers of the Officers' Reserve Corps 
of the Army are entitled to mileage for travel in joining their first 
duty station under War Department orders, 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 43 

Held, that the provision in section 38, national defense act of June 
3, 1916, that members of the Officers' Reserve Corps " shall be entitled 
to the pay and allowances of the corresponding grades in the Begular 
Army * * * from the date upon which they shall be required by 
the terms of their orders to obey the same," clearly entitles such 
officers to mileage for the travel performed, mileage being an allow- 
ance. 

Convp. Treas. June 6, 1917. 

RETIRED OFFICERS: Longevity increases for active duty. 

The act of May 12, 1917 (Pub. No. 11, p. 10) , provides : 

"That hereafter any retired officer of the Army who has been 
detailed to active duty, and who has since his retirement served on 
active detail, shall be entitled to increases of longevity pay to be 
computed as provided by existing statute for the computation of 
longevity pay, for the time of his service before retirement and on 
active detail since his retirement." 

Held, that under this legislation, which is to be read in connection 
with the last proviso of section 24, national defense act of June 3, 
1916, retired officers coming within its operation are entitled to 
increases of longevity pay, on account of active service rendered since 
retirement, not only while on such active duty but also after they 
have been relieved from such duty. 

Held further, that the act in question deals also with allowance 
of longevity credit for all active service rendered by such officers 
>ince retirement, including any such service rendered before the 
passage of the act of May 12, 1917. 

Conip. Treas. June 7, 1917. 

TRAVEL PAY: Enlisted man discharged with view to acceptance of com- 
mission. 

An enlisted man of the National Guard was discharged with a 
view to his acceptance of a commission, but he failed to qualify 
physically for the commission. Upon the question whether he was 
entitled to travel pay as a discharged enlisted man, 

Held, that the soldier's discharge as an enlisted man to enable him 
to accept a commission, which he failed to obtain by reason of physi- 
cal disqualification, was a discharge from the service within the law 
authorizing travel pay to enlisted men upon their discharge from 
the service; but contra if he had succeeded in being immediately 
mustered in in the same regiment as an officer — in such event he 
would not have been "discharged from the service " within the mean- 
ing of the travel-pay law, but would have been continued in the 
service in a higher grade. 

Comp. Treas. July 25, 1917. 

TRAVEL PAY: Enlisted men on discharge. 

An enlisted man was arrested and tried by the civil authorities on 
a charge of burglary. His trial resulted in conviction, but the sen- 
tence was supended and the soldier returned to the military authori- 
ties. About a month thereafter he was discharged by order of the 
department commander because " convicted by a civil court of the 
crime of burglary." The question was presented whether he was 
entitled to travel pay upon his discharge. Section 126, national 
defense act of June 3, 1916, declares that enlisted men when dis- 



44 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

charged from the service, "except by way of punishment for an 
offense," shall be entitled to the travel allowances therein provided. 

Held, that upon the discharge of a soldier he is entitled to travel 
pay unless his discharge was (a) by way of punishment for an of- 
fense, (b) by way of favor or for his own convenience, or (c) he was 
withdrawn from the military service by the civil authorities, and 
that in the instant case the soldier must be regarded as having by 
his own conduct created the conditions which caused his separation 
from the military service under (<?), and that he was therefore not 
entitled to travel pay upon his discharge. 

Comp. Treas. July 23, 1917. 



NOTES ON ADMINISTRATION OF MILITARY JUSTICE. 

SENTENCES: Adequacy of. 

A soldier was found guilty of being drunk and quitting his post 
in time of war while on sentry duty guarding a bridge. The ap- 
pointing authority approved, without comment thereon, the sentence 
of dishonorable discharge, total forfeitures, and confinement at hard 
labor for one month. The action of the court and the reviewing 
authority in this particular case is not criticized, but, as a general 
rule, a sentence combining dishonorable discharge and a short period 
of confinement is inappropriate, particularly at the present time, 
because of the resulting tendency to encourage a certain class of men 
to commit offenses in the hope of being discharged from the military 
service. 



BULLETIN 54. 

OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ARMY FIELD CLERKS: Service r-ecessary to qualify for allowances. 

An Army field clerk inquired whether he was entitled to credit 
for prior service as clerk in the Quartermaster Corps and in the 
Signal Corps for the purpose of making up 12 years of service under 
the act of August 29, 1916, which changed headquarters' clerks to 
Army field clerks, and provides that " after 12 years' service," as 
therein prescribed, they shall receive the same allowances, except 
retirement, " as heretofore allowed by law to pay clerks, Quarter- 
master Corps." 

Held, that as the governing statute relates only to headquarters 
clerks changed to Army field clerks, and there is nothing in it to 
suggest a different purpose, it must be held that the phrase " after 12 
years' service " refers only to service as headquarters clerk or as 
Army field clerk ; and that in the instant case the field clerk was not 
entitled to count his prior service as clerk in the Quartermaster Corps 
and Signal Corps. 

Ops. J. A. G. 6-135. July 24, 1917. 



ARMY SUPPLIES: Import duties. 

On the question whether Army supplies purchased in Canada 
(woolen blankets and clothing) are admissible free of duty. 

Held, that the customs act in force, as construed by the officers 
administering the same, requires all imports to pay the prescribed 
duties; that they are only admitted duty free where some Federal 
statute authorizes such admission ; and that as to the supplies under 
consideration, there being no statute providing for their admission 
free of duty, the required duties must be paid, although the supplies 
are consigned to the proper officers of the Quartermaster Corps ; and 
that if it is desired that such supplies be admitted free of duty, 
express legislation must be procured for that purpose. 

Ops. J. A. G. 90-313, Aug. 10, 1917. 

ARTICLES OF WAR: Construction of the forty-fifth article. 

The forty-fifth Article of War provides : 

"Whenever the punishment for a crime or offense made punish- 
able by these articles is left to the discretion of the court-martial, the 
punishment shall not, in time of peace, exceed such limit or limits 
as the President may from time to time prescribe." 

In certain cases tried by general court-martial in which the offense 
was committed in time of peace but not brought to trial until after 
war had begun, the records disclosed that the courts-martial pro- 
ceeded upon the assumption that the intervention of a state of war 
had rendered the maximum punishment order no longer operative 

45 



46 MGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

as to all cases tried during the state of war irrespective of the time 
of the commission of the offenses. 

Held, that this view of the effect of the forty-fifth article of war 
is erroneous; that while a liberal rendering of the article might in- 
dicate that the time at which an offense is tried, and not the time of 
the commission of the offense, is to determine the measure of pun- 
ishment, such a result was clearly not the intention of Congress, but 
under the well-known rule of construction that the spirit and not 
the letter of the law mast prevail it must be held that the proper 
construction of the forty-fifth article of war is to the effect that the 
maximum punishment order is applicable and must govern in the 
punishment of all offenses committed in time of peace regardless of 
the date when such offenses may be tried, and that as to all offenses 
committed in time of war the maximum punishment order will not 
apply whether the said offenses be tried during time of war or not 
until time of peace. 

Ops. J. A. G. 30-823, Aug. 29, 1917. 

CIVILIAN TRAINING CAMPS : Claims for damages. 

On the question whether claims for damages to private property 
due to training-camp work are payable from training-camp funds 
when duly found by the proceedings of a board of officers, approved 
by the commanding officer. 

Held, that the appropriation for civilian training camps (act of 
May 12, 1917; Pub. No. 11, 65th Cong. p. 34) expressly includes 
" damages resulting from field exercises and other expenses incident 
to maintaining said camps," etc. : and that this provision clearly 
covers damages to private property due to operations incident to 
training-camp work. 

Ops. J. A. G. 18^20. July 23, 1917. 

COURTS-MARTIAL : Legality of sentence. 

An enlisted man of an Engineer detachment was sentenced by 
summary court-martial to be reduced from corporal to private. As 
there was no grade of private in the detachment, the question was 
presented whether the sentence was legal. 

Held, that as there is a grade of private of Engineers, and as a 
summary court-martial has jurisdiction to reduce noncommissioned 
officers to the ranks, the fact that in the particular detachment there 
was no grade of private did not affect the power of the court, and 
that the sentence was legal if there was no other objection. 

Ops. J. A. G. 30-704, Aug. 22, 1917. 

EIGHT-HOUR LAW : Contracts for supplies. 

The question was submitted as to whether the eight-hour act 
of June 19, 1912 (37 Stat. 137), applies to operations upon an 
order placed with a manufacturer for panoramic sights for the 
Ordnance Department, it being stated that the Government has 
never manufactured such sights other than as a laboratory experi- 
ment. 

Held, that while the prospective buyers of such supplies are 
limited to governments or their agencies, they are, nevertheless, 
within the provision of the statute excepting from the operation 
of the act supplies or materials which may usually be bought in 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 47 

open market ; that the exception applies, although the class of 
purchases is so limited, is indicated by the fact that there is with- 
drawn from the exception " armor and armor plate," a class of arti- 
* cles the market for which is similarly limited. 
Ops. J. A. G. 32-313, Aug. 10, 1917. 

ENLISTED MEN : Extra and special duty. 

The question was presented whether extra compensation is pay- 
able to enlisted men under paragraph 329, Army Regulations, from 
company and mess funds for services as cooks, mess attendants, etc., 
in view of War Department order of June 6, 1917, that "no extra- 
duty pay will be allowed " to enlisted men during the time for which 
thev will receive increased compensation under the act of May 18, 
1917. 

Held, that the War Department order of June 6, 1917, which ap- 
plies only to extra duty pay does not prohibit the allowance of addi- 
tional pay to enlisted men from company and mess funds under 
A. R. 329, which additional pay is for special duty and not extra 
duty. The distinction between extra and special duty is well estab- 
lished. Extra duty has relation to constant labor extending over a 
period of not less than 10 days, not connected with the interior 
administration of a company, regiment, or other organization, for 
which service compensation in the form of extra-duty pay has been 
allowed by law. The term special duty applies to service connected 
with the administration of companies, battalions, regiments, etc., or 
with the comfort and welfare of enlisted men belonging to such 
organizations. It is a duty which belongs to the organization — to 
the enlisted men of the company or regiment and not to the public. 

Ops. J. A. G. 72-203, Aug. 28, 1917. 

ENLISTED RESERVE CORPS: Aviation pay. 

The question was submitted whether enlisted men of the Aviation 
Section, Signal Enlisted Reserve Corps, are entitled to increased pay- 
when on duty requiring them to participate regularly and frequently 
in aerial flights, 

Held, that they are so entitled, under the same conditions as are 
enlisted men of the Regular Army on such duty, for the reason (hat 
section 3 of the act of July 18, 1914 (38 Stat. 514), creating the 
Aviation Section of the Signal Corps and prescribing the personnel, 
provides that each aviation enlisted man shall receive additional pay 
when on such duty ; and section 13, national defense act, only repeals 
inconsistent provisions of the prior law, leaving this provision in 
force; and section 55, national defense act, provides that members of 
the Enlisted Reserve Corps, when in active service, "shall be entitled 
to the pay and allowances of the corresponding grades of the Regular 
Army," etc. 

Ops. J. A. G. 72-200.1, July 16, 1917. 

INTOXICATING LIQUORS: Military camps. 

With reference to a recommendation that Tampa, Fla., where cer- 
tain troops were assembled preliminary to their transfer to a division 
training camp, be declared a military post in order to require the 
closing of all saloons during the presence of the soldiers there, 



48 DIGEST OF OPINIONS JUDGE ADVOCATE GENEKAL OF ARMY. 

Held, that the term " military camps," as used in the act of May 18, 
1917, and the regulations made under authority thereof governing 
the prohibition of alcoholic liquors " in or near military camps,"' had 
reference to camps established for purposes of mobilization, training, 
embarkation, etc., of troops and were not intended to apply to places 
of preliminary assembly such as that under consideration. 

Ops. J. A. G. 48-100, Aug. 25, 1917. 

MEDICAL DEPARTMENT : Treatment of contractors' employees on can- 
tonment construction. 

On the question whether there was any objection to the treatment 
by the Medical Department of the employees of contractors for build- 
ings at cantonments, 

Held, that while the functions of the Medical Department are not 
defined by statute, they are necessarily limited by the terms of ap- 
propriations for the support of the Army; that the appropriations 
for the Medical Department appear to be available only for the med- 
ical care and treatment of persons connected with the military estab- 
lishment and, under authority of the act of September 7, 1916 (39 
Stat. 748), of Government employees generally who are injured in 
the performance of their duty as such employees ; and that while the 
medical care of contractors' employees may be authorized from ap- 
propriations for cantonment construction, the limitations on the use 
of Army appropriations would preclude payments from such appro- 
priations of the necessary expenditures involved. 

Ops. J. A. G. 6-227.6, Aug. 18, 1917. 

NATIONAL GUARD: Pay and medical treatment of members prior to 
muster into Federal service. 

A National Guard enlisted man who had responded to the Presi- 
dent's call for Federal service but had not been mustered in suffered 
a broken leg in a friendly scuffle with other enlisted men of his com- 
pany. There being no Government facilities available for his treat- 
ment, he was sent to a private hospital by order of his commanding 
officer, where he remained for several weeks and was not able there- 
after to report to his organization for duty before its muster out. 
It was not clear from the record whether the soldier had been for- 
mally rejected as unfit for the Federal service. Upon submission of 
the question as to his right to pay and the liability of the Govern- 
ment for the expenses of his hospital treatment, 

Held, That in view of the nature of the soldier's disability, his 
rejection as being physically unfit for the Federal service was neces- 
sarily implied, assuming that he was not formally rejected, effective 
on such date as it would have been his duty but for his injuries to 
report for muster in, and that he was entitled to pay only up to that 
date; and as to the obligation of the United States to pay the ex- 
penses of his medical and hospital treatment, his status after the 
date of his implied rejection for physical disability was analogous 
to the case of a soldier discharged from the service while confined in 
a hospital for treatment, who, under the provisions of paragraph 
1452, Army Regulations, would be entitled to remain in the hospital 
at the expense of the United States until such time only as he was 
able to leave the hospital and proceed to his home. 

Ops. J. A. G. 6-227.6, July 27, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 40 

PAY AND ALLOWANCES: Fuel and light for Reserve and National 
Guard officers. 

In the case of certain members of the Officers' Reserve Corps and 
officers of the National Guard on duty at a military post, the ques- 
tion was raised as to the legality of their being charged by the 
Quartermaster Corps for fuel and light consumed by them in public 
quarters. 

Held, that Congress has very clearly manifested its intention in 
legislation that National Guard troops and members of the Officers' 
Reserve Corps in the active service of the United States shall receive 
the same pay and allowances as is provided by law for officers and 
enlisted men of the Regular Army of like grades, and that under the 
act of March 2, 1907 (34 Stat. 1167), all officers are entitled to heat 
and light actually necessary for the allowance of quarters to which 
they are entitled and have been assigned, and in case National Guard 
officers and members of the Officers' Reserve Corps on duty at any 
military post are duly occupying their authorized allowance of public 
quarters at such post, they should not be charged for heat and light 
actually necessary for such quarters. 

Ops.' J. A. G. 72-310, Aug. 18. 1917. 

RETIRED ENLISTED MEN: Active duty pay. 

It was directed in War Department orders that certain retired 
enlisted men named therein " are assigned to active duty in their 
giades. to take effect June 20, 1917. and will be sent by the command- 
ing general of the department in which the soldiers reside to the 
stations indicated for assignment to active duty.*'' The men were 
not directed by the department commander to report for active duty 
until some time after June 20, 1917. and the question was presented 
whether they were entitled to active duty pay from June 20, the date 
named in War Department orders as the date of their assignment to 
active duty. Section 7 of the act of May 18, 1917, provides that the 
President may " authorize the employment on any active duty of 
retired enlisted men of the Regular Army, either with their rank 
on the retired list or in the higher enlisted grades, and such retired 
enlisted men shall receive the full pay and allowances of the grades 
in which they are actively employed. 

Held, that the statute indicates clearly that the soldiers must be 
employed on active duty before full pay and allowances can accrue: 
that the War Department order in such cases is to be regarded only 
as authority for employment of the men on active duty and does not 
have the effect of authorizing pay from the date mentioned therein, 
and that under the statute active duty pay does not commence until 
the men start in response to specific orders to report for duty. 

Ops. J. A. G. 88-630, Aug. 14, 1917. 

RETIRED OFFICERS: Commencement of pay for active service. 

Section 24, national defense act of June 3, 1916, provides: 
" That in time of war retired officers of the Army may be employed 
on active duty, in the discretion of the President, and when so em- 
ployed they shall receive the full pay and allowances of their grade." 
Field, that as retired officers ordered to active duty under this stat- 
15173S— 20 4 



50 DIGEST OF OPINIONS JUDGE ADVOCATE GENEKAL OF AEMY. 

ute are entitled to active duty pay only when " employed on active 
duty," full pay and allowances do not begin to accrue until the officer 
starts to obey his orders placing him on active duty. 
Ops. J. A. G. 88-630, Aug. 14, 1917. 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

CIVILIAN EMPLOYEES: Compensation increases. 

The following question was presented for decision : 

"A civilian employee being in the service prior to June 30, 1917, in 
the capacity of laborer is dropped on July 5, 1917, as such, and reem- 
ployed on July 6 as packer. Is he entitled to the 10 per cent increase 
in pay under the act making appropriations for the support of the 
Army for the fiscal year ending June 30. 1918, and for other purposes, 
and upon what is it based ? " 

Held, that if the employee in question is a civilian employee in the 
Military Establishment and was borne on a lump-sum roll on June 
30, 1917, he is entitled to the percentage increase, on his compensation 
as packer, provided the position or rating of packer existed or was 
recognized at the close of the fiscal year 1917 and the rate of compen- 
sation thereof does not exceed $1,800 per annum or $5 per day; but if 
the position or rating of packer is a newly established one not recog- 
nized during the fiscal year 1917, the employee receiving such rating 
is entitled only to the compensation fixed therefor without any per- 
centage increase. 

Comp. Treas. Aug. 7, 1917. 

CIVILIAN EMPLOYEES : Percentage increase in compensation. 

Certain employees of the Military Establishment who were in the 
service June 30, 1917, and borne on lump-sum rolls were thereafter 
promoted to other positions in the military service also payable from 
lump-sum appropriations. As to whether they were entitled to the 
percentage increases provided for in the Army appropriation act ap- 
proved May 12, 1917, on the salaries of the positions to which they 
were promoted, 

Held, that if the positions or rating to which they were promoted 
existed or were recognized in the Military Establishment at the close 
of the fiscal year 1917, such employees were entitled to the percentage 
increases. 

Comp.' Treas. Aug. 27. 1917. 

COMMUTATION OF QUARTERS : Officers on duty in the field. 

In the case of certain National Guard organizations called into the 
Federal service and ordered to do guard duty along railroads, at 
public buildings, etc., the question was presented whether such offi- 
cers were entitled to commutation of quarters in view of the fact that 
it was " not possible to establish a camp," and, further, that no 
tentage was available, and when " ordered from home stations to go 
on guard duty at bridges and public buildings the various corpora- 
tions interested had to furnish shelter " for the men, and the officers 
had to make their own provisions for quarters. The act of March 4, 
1915, provides: 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 51 

" That hereafter, at places where there are no public quarters avail- 
able, commutation for the authorized allowance therefor shall be 
paid to commissioned officers. * * *." 

The act of February 27, 1893 (27 Stat. 480), provides that "offi- 
cers temporarily absent on duty in the field shall not lose their right 
to quarters or commutation thereof at their permanent stations while 
so temporarily absent." 

Held, that the officers referred to were not entitled to commutation 
of quarters for the following reasons: 

It has long been the well-established rule that officers on field 
service do not acquire a right to commutation of quarters while on 
and by reason of such service. 

The said officers were on duty in the field, and under their orders 
had no station other than their field station, and so could not be tem- 
porarily absent from a permanent station within the act of February 
'21. 1893, which act does not give an officer commutation of quarters 
rsr duty in the field, but secures to him his right to commutation of 
quarters as for service at his permanent station. If the officers failed 
to receive an allowance of tentage and camp equipage, it was an inci- 
dent of the service, and there is no authority for giving them a money 
allowance. 

Comp. Treas. Aug. 8, 1917. 

NATIONAL GUARD : Pay of enlisted men for training service. 

Certain enlisted men of the District of Columbia National Guard, 
not in the Federal service, were engaged in outdoor rifle practice 
under competent orders during the month of June, 1917. 

Held, that they were entitled for such service to the increased rates 
of pay provided for by section 10 of the act of May 18, 1917. 

Comp. Treas. Aug/ 3, 1917. 

PRIVATE PROPERTY : Loss in shipment under orders. 

The Auditor for the War Department disallowed the claim of a 
noncommissioned officer for the value of his household goods de- 
stroyed by fire June 30, 1916, at Seattle, Wash., while in shipment 
under orders, such disallowance being made for reasons stated as 
f ollows : 

" As the property was not lost or destroyed by being shipped on 
an unseaworthy vessel, nor by reason of the claimant giving his 
attention to saving property belonging to the United States, no reim- 
bursement can be made." 

Upon appeal, 

Held, by the Comptroller, that the claimant was entitled to reim- 
bursement under the act of March 4, 1915, which extends the pro- 
visions of the act of March 3, 1885, to cover losses of private property 
sustained in shipment under orders in excess of that recoverable from 
the carrier. This legislation authorizes and directs the accounting 
officers of the Treasury to examine into, ascertain, and determine the 
value of the regulation allowance of baggage belonging to officers 
and enlisted men in the military service which has been lost or dam- 
aged in such service on or after March 4, 1915, in shipment under 
orders; and when such loss or damage was without fault or negli- 
gence on the part of the claimant, was not sustained in time of war 
or hostilities with Indians, and the claim for compensation is pre- 



52 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

sented within two years from the occurrence of the loss qr damage, 
the amount of such loss or damage so ascertained, in excess of the 
amount recoverable from the carrier, is payable by the United States. 
The liability of the Government is, by the terms of the act of 1885, 
" limited to such articles of personal property as the Secretary of 
War, in his discretion, shall decide to be reasonable, useful, necessary, 
and proper for such officer or soldier while in quarters, engaged in 
the public service, in the line of duty." 
Comp. Treas. Aug. 1, 1917. 



NOTES ON MILITARY JUSTICE. 

EVIDENCE : Depositions. 

Under the twenty-fifth article of war the use of depositions in capi- 
tal cases is prohibited. Under the fifty-eighth article of war the death 
penalty may be imposed for desertion in time of war. Depositions 
are. therefore, not admissable as evidence in desertion cases in time 
of war. The fact that under the thirty-seventh article of war the 
improper admission of evidence does not wholly invalidate the pro- 
ceedings, if the substantial rights of the accused have not been injuri- 
ously affected thereby, does not authorize the use of depositions in 
desertion cases in time of war. 

SENTENCES: Forfeiture of pay. 

A number of sentences have recently been noticed in which long 
terms of confinment were imposed without airy forfeiture or detention 
of pay. In addition to the general and obvious objections to paying 
a soldier serving sentence for the performance of duty, which because 
of his misbehavior has been thrust upon his better-behaved comrades, 
there is the further consideration, which is of particular importance 
whenever duty is as arduous as it was in several of the instances no- 
ticed, that these sentences have a tendency to encourage rather than to 
deter the commission of offenses by a certain percentage of men. It 
is only in very exceptional cases that such sentences should be consid-. 
ered appropriate. 



BULLETIN 67. 

OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ARMY I, E; ARMY BANDS I: Competition of enlisted men with civilians. 

By the act of May 11. 1908 (35 Stat. 110), and the act of June 3, 
1916 (39 Stat. 175), enlisted men, Army bands, and members thereof 
are forbidden from engaging in any competitive civilian employment. 
The implication is that they may engage in such employment if it 
does not interfere with the customary and regular engagement of 
local civilians in the respective arts, trades, or professions. Whether 
such interference will or does result is a question of fact, which is not 
to be settled by reference either to union labor alone or to nonunion 
labor alone. 

Ops. J. A. G. 322.941. Oct. 25, 1917. 

ARMY I : Composition and organization. 

There is but one Army of the United States, and every organiza- 
tion, bureau, officer, and man in the military service is part of it. 
The Inspector General's Department, as well as all other staff corps 
and departments, are to be reorganized out of the Army at large so 
that such departments may properly perform their ever-increasing 
functions. The primary authority for providing the necessary staff 
officers in the increased establishment is not to be found in the use of 
reserve officers as such, but in the power to appoint necessary officers 
under the National Army act. 

Ops. J. A. G. 6-220, Oct. 16, 1917. 

The President may organize the National Guard component of the 
Army of the United States largely as he sees fit under section 111 
of the national defense act. 

Ops. J. A. G. 58-210, Sept. 26, 1917. 

ARMY II, D : Employment of, to aid civil authority. 

By section 4, Article IV, Constitution of the United States, and sec- 
tion 5297, Revised Statutes, the President is authorized, upon appli- 
cation therefor by proper State authorities, to employ such of the land 
and naval forces of the United States as may be necessary for the 
suppression of domestic violence. This power and responsibility the 
President can not delegate to a commanding officer. 

Ops. J. A. G. 6-020, Oct. 25, 1917. 

ARMY I, E: Status of a lance corporal. 

A lance corporal is not a noncommissioned officer. 
Ops. J. A. G. 72-230, Oct, 9, 1917. 

ARTICLES OF WAR XCI : Use of depositions in court-martial proceedings. 

In trials for desertion in time of war, the use of depositions on the 
part of the Government is not allowed. (A. W. 25.) Hence trial 
judge advocates and convening authorities should, in determining 

53 



54 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

the place of trial, bear in mind the expense of procuring witnesses ; 
and the trial judge advocates should make careful investigation to de- 
termine whether a plea of guilty is to be entered and whether testi- 
monv of witnesses is reasonably necessary. 
Ops. J. A. G. 30-477.1, Sept, 25 ; 26-800, Oct. 13, 1917. 

ARTICLES OF WAR LIX, I 1: Delivery of soldier to civil authorities. 

In time of war the military authorities are not required to sur- 
render to the civil authorities one subject to military jurisdiction 
and charged with a civil offense. It is recommended as a matter of 
policy that such surrender be not made, unless the offense charged is 
a most serious one and the charge is shown not to be without proper 
foundation and it appears that the accused will be accorded a fair 
trial without prejudice on account of his military status. 

Ops. J. A. G. 14-233, Oct, 30, 1917. 

ARTICLES OF WAR CVI: Interpretation of article 48 (b). 

The fort}'-eighth article of war provides for the execution of 
the sentence of a court-martial dismissing an officer below the grade 
of brigadier general in time of war " upon confirmation by the com- 
manding general of the army in the field, or by the commanding gen- 
eral of the territorial department or division." The word " division " 
means territorial division and not tactical division. 

Ops. J. A. G. 30-500, 30-525, Oct. 24, 1917. 

ARTICLES OF WAR XXI, C 2 : Disobedience of illegal order. 

Under paragraph 53, Compilation of Orders, an enlisted man com- 
mits no offense by refusing to submit to a surgical operation advised 
by the attending surgeon unless such surgeon (1) executes a formal 
written certificates stating the general nature of the operation and 
that, in his opinion, it is without appreciable risk to the life of the 
soldier and is necessary for. the removal of a disability then existing 
which prevents the full performance of any or all military duties that 
can properly be required of the soldier; (2) causes such certificate to 
be made a part of the records of his office ; (3) reads the certificate 
to the soldier; and (4) unless the soldier thereafter refuses to submit 
to said operation. (But it was recommended that the paragraph be 
amended so as to apply only in time of peace. ) 

Ops. J. A. G. 6-227.6, Oct. 23, 1917. 

CHAPLAINS: Eligibility of Christian Science Readers. 

First Readers of the Christian Science Church are eligible to ap- 
pointment as chaplains at large under the act of October 6, 1917, au- 
thorizing appointment from religious sects not recognized in the ap- 
portionment of chaplains now recognized by law. 

Ops. J. A. G. 64-233.3, Oct. 10, 1917. 

CIVILIAN EMPLOYEES, XIII : Right to wear uniform. 

Psychological examiners in the National Army cantonments under 
civil-service appointments have no military status whatever and are 
not entitled to wear the uniform of the United States Army. 

Ops. J. A. G. 96-140, Oct. 27, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 55 
COMMAND IV, V; ARTICLES OF WAR LXXII, H. 

Under paragraph 191, A. K., as amended by General Orders, No. 
96, W. D., July 20, 1917, division commanders have full control in 
all that pertains to administration, instruction, training, and disci- 
pline, and have jurisdiction over the personnel of camp quartermas- 
ters, as well as other members of the military present in their camps 
and performing various duties connected with the camps. 

Ops. J. A. G. 20-200, Oct. 18, 1917. 

CONTRACTS XX: Effect of failure of contractor to furnish bond. 

Where a contractor for the repair of a steamer did not furnish a 
bond, as required by the act of February 24, 1905 (33 Stat. 811), but 
deposited a certified check in lieu thereof and the check was errone- 
ously returned upon the completion of the work, leaving no protec- 
tion for possible claims of labor and material men, 

Held, that as a bond in connection with such contracts is required 
by statute not only for the protection of the Government but also 
for the benefit of labor and material men, final payment on the con- 
tract should be withheld by the Government until the contractor fur- 
nished a bond as required by the statute in an amount deemed 
sufficient for the protection of possible claims of labor and material 
men. 

Ops. J. A. G. 76-221, Sept. 8, 1917. 

DESERTION V, B : Reward, when payable. 

The reward of $50 for the apprehension and delivery of a National 
Army deserter should be paid even though upon examination he was 
found to be physically disqualified for military service. 

Ops. J. A. G. 26-200, Oct. 26, 1917. 

DESERTION V, C, B : Reward, place of delivery. 

No greater sum than $50 can be paid for the apprehension and 
return of a deserter, although the expense of his return may exceed 
that amount. But there is no objection to designation of a con- 
venient place for receipt of deserters apprehended and delivered by 
civil authorities, and a detail may be stationed at the designated 
place to receive such deserters or a guard sent there to receive and 
return them. 

Ops. J. A. G. 26-200, Oct. 11, 1917. 

DISCHARGE XXVI, A: Of drafted alien. 

Citizens of a foreign country subject to draft may not be released 
therefrom to permit them to enlist in the army of their own country. 
Ops. J. A. G. 34-^42, Oct. 6, 1917. 

EIGHT-HOUR LAW : Extra pay for overtime work. 

The question was presented whether the Government was author- 
ized to pay mechanics employed under lump-sum appropriations 
extra compensation for overtime work in excess of eight hours a day, 
such overtime work being authorized in emergencies. 

Held, that as there is no law governing the rates of pay of me- 
chanics employed directly by the Government who are paid from lump- 
sum appropriations, but the terms of their employment are fixed by 
agreement between the parties, it is discretionary with the deoart- 



56 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

ment to allow, by agreement with such employees, extra pay for 
overtime work in excess of eight hours; and recommended, in view 
of the prevailing practice in the commercial and industrial world 
of allowing mechanics and laborers extra pay for overtime in excess 
of a basic eight-hour day, and of the action of Congress in requiring 
adherence to this practice as to persons employed on contracts with 
the United States (act of Mar. 4, 1917, 39 Stat/ll92). that mechanics 
and laborers employed directly by the Government be placed upon 
equal terms of employment in this respect. 
Ops. J. A. G. 32-2il, Sept. 6, 1917. 

EIGHT-HOUR LAW : Application to certain contracts. 

The act of June 19, 1912, the so-called eight-hour law, excepts from 
its operation contracts " for such articles and materials as may usually 
be bought in open market, whether made to conform to particular 
specifications or not." Consequently contracts for escort wagons, 
carts, and ambulances, which follow commercial designs, differing 
mainly in grade and size of material used in their manufacture, are 
not governed by the provisions of said act. 

Ops. J. A. G. 32-313, Oct. 18, 1917. 

Contracts for clothing may not contain a provision permitting more 
than eight hours' work per day for eight hours' pay, even though the 
week's work be limited to 48 hours. Under the Executive order of 
March 24, 1917, more than eight hours' work per day is permitted, 
provided that full pay be given for eight hours, and pay at the rate 
of time and one-half for overtime. 

Ops. J. A. G. 32-300, Oct. 18, 1917. 

ENLISTMENT II, B: Conscientious objectors. 

Members of well-recognized religious sects whose creed or prin- 
ciples forbid the participation in Avar are exempted only from com- 
batant service, not from noncombatant military service. Seiwice with 
the American Eed Cross or manual labor performed upon farms or 
gardens operated for the benefit of the Army on land leased or occu- 
pied for military purposes is not military service, and can not be 
designated by the President as noncombatant military service, assign- 
ment to which will relieve conscientious objectors from military 
service. 

Ops. J. A. G. 34-442.1, Sept, 18, 1917. 

ENLISTMENT II, A: Date of. 

A drafted man is enlisted from the date specified in the notice of 
the local board or of the adjutant general of the State for the man to 
report to the local board or at a designated place for military duty. 
His pay begins upon that date. 

Ops.' J. A. G. 72-200, Oct. 2, 1917. 

ENLISTMENT II, E: Failure to respond to draft. 

Drafted persons who fail to respond to the draft are deserters and 
are subject to trial by courts-martial for desertion. EeAvard of $50 
may be paid for their apprehension and delivery. 

Ops. J. A. G. 26-221, Oct. 10, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 57 

ENLISTMENT I, A 9e; II, E: Effect of fraudulent enlistment. 

An enlisted man in the National Guard deserted before the Na- 
tional Guard was drafted, and enlisted in the Medical Department, 
United States Arm}'. After the drafting of the National Guard he 
was discharged from the latter enlistment for fraudulent enlistment. 
Held that lie was included in the draft of the National Guard ; that 
his present status is that of a deserter from the military service of 
the United States ; and that he is not eligible for reenlistment. 

Ops. J. A. G. 58-141, Oct. 4, 1917. 

ENLISTMENT I, A 6 : Enlistment for restricted service. 

Under the act of July 24, 1917, no authority is given to enlist men 
in the Signal Corps for musical purposes solely and on condition that 
they shall not be liable to or eligible for general military duty as 
soldiers. 

Ops. J. A. G. 8-150, Oct. 30, 1917. 

ENLISTMENT I, C la, c: Repatriation. 

American citizens who have heretofore enlisted in armies of powers 
at war with any country with which the United States is at war may 
have their American citizenship restored under the act of October 5, 
1917. 

Citizenship is not necessary for enlistment in the United States 
Army in time of war. 

Ops. J. A. G. 13-210, Oct. 13, 1917. 

ENLISTMENT I, C lc: Rights of enlisted alien enemy. 

A citizen of Germany who is an enlisted man in the Army of the 
United States is not forbidden by the President's proclamation of 
April 6, 1917, to go within one-half mile of any fort, etc., when or- 
dered to do so by his superiors. 

Ops. J. A. G. '99-211, Oct. 20, 1917. 

GOVERNMENT AGENCIES II, B: Investment of company funds. 

Surplus company funds may be properlv invested in Liberty bonds. 
Ops. J. A. G. 40^221, Oct. 13, 1917. 

INSIGNIA OF MERIT, I, C : Distinguished-service medals. 

The President as Commander in Chief has authority to provide for 
distinguished-service medals to be conferred for deeds of gallantry in 
action and other exceptionally meritorious service, in addition to 
those medals now provided for by legislative action. 

Ops. J. A. G. 46-100, Oct. 27, 1917. 

INTOXICANTS: Application of President's regulations. 

Section 12 of the act of May 12, 1917, and the regulations there- 
under, prohibiting intoxicating liquors within specified distances of 
camps, apply to military camps in Porto Rico for the mobilization 
and training of drafted men. 

Ops. J. A. G. 48-100, Oct. 8, 1917. 

INTOXICANTS : Enforcement of President's regulations. 

There is no authority under section 12 of the draft act and the 
regulations of the President thereunder for seizure of liquor within 



58 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

the prescribed zones nor for search of premises therein without a 
search warrant. The regulations are to be enforced through the De- 
partment of Justice. Cooperation with the Commissioner of Inter- 
nal Revenue is advised. 
Ops. J. A. G. 48-100, Oct. 20, 1917. 

The Federal laws and regulations concerning intoxicating liquors 
and bawdy houses within prescribed limits of camps and concerning 
the sale of intoxicants to soldiers in uniform should be strictly en- 
forced, and the commanding officers should request local authorities 
to enforce rigidly and vigorously the local statutes and regulations 
as to intoxicants and vice and should cooperate with them so far as 
possible. 

Ops. J. A. G. 48-100, Oct. 23, 1917. 

INTOXICANTS: Interpretation of President's regulations. 

The word camp as used in the regulations of the President issued 
under section 12 of the draft act includes not only the space actually 
occupied by the tents or other cover in which the soldiers live but 
as well the adjacent territory habitually used by the encamped forces 
in the performance of their military duties. Within the prescribed 
limits of such camps the regulations should be rigidly enforced, and 
no suggestion of local civil authorities to the contrary should be tol- 
erated. 

Ops. J. A. G. 48-020, Oct. 20, 1917. 

INTOXICANTS : Penalty for violation of President's regulations. 

Licenses for the sale of intoxicating liquors granted by the re- 
spective States can not be revoked by Federal authority for violation 
of Federal regulations. 

Ops. J. A. G. 48-100, Oct. 9, 1917. 

MILITIA: Draft of State staff corps. 

Within the terms of the national defense act officers and enlisted 
men of the usual staff corps and departments of the several States 
were not members of the National Guard, but this was changed by the 
Army appropriation act of May 12, 1917. Such officers and men may 
now be drafted into the Army of the United States, for the Presi- 
dent's power was not exhausted by his proclamation of August 5, 
1917. 

Ops. J. A. G. 58-141, Oct. 30, 1917. 

MILITIA VIII, A: Expenses of, after draft. 

Necessary expenses for armories, fuel, light, water, etc., for the 
organized National Guard incurred after August 5, 1917, are proper 
charges against the United States. 

Ops. J. A. G. 80-710, Oct. 8, 1917. 

MILITIA III: Grade of wagoner not authorized in separate companies. 

In the case of a company of Engineers, National Guard, in the 
Federal service, there were four men included as wagoners, and 
the question was presented in connection with their payment whether 
wagoners are authorized for separate companies of Engineers, Na- 
tional Guard. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 59 

Held, That as wagoners do not form a part of the statutory per- 
sonnel of a National Guard company, which, by section 60 of the 
national-defense act, must be the same as that prescribed for the 
Regular Army, they can not be recognized as a part of the authorized 
personnel of such companies unless the} 7 are, in fact, a part of a 
regiment or mounted battalion, as required by the statute ; that sepa- 
rate companies of Engineers, whether of the National Guard or of 
the Regular Army, can not include as a part of their personnel en- 
listed men of the grade of wagoners, but that the duties which 
would in a company forming part of a regiment or of a mounted bat- 
talion, be performed by a wagoner must in a separate company be 
performed by enlisted men of other grades detailed for that purpose 
or by wagoners detailed from organizations having enlisted men of 
that grade. 

Ops. J. A. G. 58-210, Feb. 1, 1917. 

MILITIA I, IV: Status of Home Guards, etc. 

During the present war a State may lawfully raise and maintain 
troops which resemble in all or almost all respects the well-known 
militia of the several States as it hitherto existed, for service within 
its own boundaries exclusively. These forces are capable of being 
called by the Nation into the service of the United States for the 
usual constitutional purposes, and the members as individuals: can 
be drafted by the Federal Government, but are not subject to draft 
under second paragraph of section 1 of the national-defense act as 
members of the National Guard. 

Ops. J. A. G. 58-980, Oct. 13, 1917. 

OFFICE III, A 7 : Acceptance by conduct. 

Obedience by a person already in the service to an order directing 
him to report at a designated place can hot be considered acceptance 
of an appointment of which the said person had no notice or knowl- 
edge. 

Ops. J. A. G. 64-231, Oct. 13, 1917. 

OFFICE III, A 7: Acceptance of, by conduct. 

An officer, holding a commission in the Medical Reserve Corps, re- 
fused a commission in the medical section of the Officers' Reserve 
Corps. He continued in active service after the termination of the 
commission in the Medical Reserve Corps and continued to receive 
pay as an officer of the Army. 

Held, that acceptance of a commission may be implied as well as 
expressed, that the officer's conduct constituted an acceptance of the 
commission in the Officers' Reserve Corps, and that he should be re- 
quired to take the oath prescribed by law. 

Ops. J. A. G. 64-218.3, Oct. 19, 1917. 

OFFICE IV, E 2 ; DISCHARGE XX : Discharge of National Guard officers 
after draft. 

Upon the draft of the National Guard into the Federal service 
officers thereof became officers of the United States Army and can 
thereafter be discharged only under section 9 of the act of May 18, 
1917. Paragraph 19, Special Regulations 55. War Department, 1917, 
does not apply. 

Ops. J. A. G. 64-350, Oct. 15, 1917. 



60 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

OFFICE III, A 1 : Eligibility for appointment. 

A man who has completed one year's service in the National Army 
may become a candidate to fill a vacancy in the grade of second lieu- 
tenant in the Regular Army created or caused by the increase due to 
the operation of the act of June 3, 1916, but not for a vacancy not 
so caused. The phrase %t except as to promotions " in section 2 of act 
of May 18, 1917, applies exclusively to officers. 

Ops. J. A. G. 61-212, Oct. 10, 1917. 

OFFICE III, A 1 : Qualifications for appointment as second lieutenant, 
Regular Army. 

Section 24 of the national-defense act, as amended by the act ap- 
proved May 12, 1917, provides, with reference to the filling of vacan- 
cies in the grade of second lieutenant. Regular Army, for the appoint- 
ment — 

" Under provisions of exisiting law * * * of members, in- 
cluding officers, of the Organized Militia, the National Guard, or 
Naval Militia, between the ages of 21 and 31 years who have had 
at least ninety days' actual Federal military service under any call 
of the President during the calendar year nineteen hundred and six- 
teen, and whose fitness for promotion shall have been determined by 
examination," 

Held, that a person who had been discharged from the National 
Guard and had entered a training camp as a candidate for a com- 
mission was not eligible for appointment as a second lieutenant under 
the said provision, as the qualification of membership in the National 
Guard must exist at the date of appointment, 

Ops. J. A. G. 61-213.3, Aug. 17, 1917. 

Held further, that a National Guard enlisted man furloughed to 
the National Guard Reserve Avas eligible for appointment under the 
said provision as he continued to be a member of the National Guard. 

Ops. J. A. G. 58-214, Sept. 26, 1917. 

Held further, that no person is eligible as a member of the National 
Guard for appointment as a provisional second lieutenant in the 
Regular Army under section 24 of the national defense act, as 
amended by act of May 12, 1917, unless he is a member of the Na- 
tional Guard at the date of appointment. It is immaterial that they 
were members of National Guard at date of examination. 

Ops. J. A. G. 64-213.3, Oct. 10, 1917. 

PAY AND ALLOWANCES I, B 6, C 6 : Longevity and continuous-serv- 
ice pay. 

Officers and enlisted men of the National Guard are, when drafted 
into the Federal service under the act of June 3, 1916, entitled to 
credit for their prior service, both State and Federal, in the National 
Guard, for purposes of longevity and continuous-service pay. But 
this right is limited to those actually brought into the service as 
National Guardsmen under the draft, (As to rank, see below.) 

Ops. J. A. G. 58-631 ; 72-130, Oct. 27, 1917. 

PAY AND ALLOWANCES I, A la; II, A 3: Of drafted men upon un- 
charge. 

Drafted men who are exempted after their arrival at the mo- 
bilization camp are entitled to receive pay for the time spent after 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OP ARMY. 61 

their order to the camp until their discharge and. in addition there- 
to, an amount equal to 3J cents per mile from the mobilization camp 
to the place from which they were ordered to said camps. 
Ops. J. A. G. Nr-245j Oct. 15, 1917. 

PAY AND ALLOWANCES I, C ; II, A 3 : Of men in training camps. 

Enlisted men of the National Guard, as well as students at Signal 
Corps aviation schools, while being trained as officers in training 
schools or camps are entitled to the same pay and allowances as can- 
didates at reserve officers' training camps. 

Ops. J. A. G. 72-200.1. Oct. !). 1917. 

PAY AND ALLOWANCES II, A 2d: Officer's private mount. 

An officer owning a private mount acquired by him before receipt of 
General Order No. 113, who is ordered to foreign service and is not 
required to take his mount with him, may have said mount cared for 
at a remount depot at public expense while such officer is on duty 
abroad, but he must send the mount to such depot at his own expense. 

Ops. J. A. G. 94-011, Oct. 23, 1917. 

PAY AND ALLOWANCES I, C 5 : Reenlistment pay is not bounty within 
prohibition of act of May 18, 1917. 

The question was presented whether the provision in the National 
Army act. approved May 18, 1917 (Bui. 32. War Dept. 1917), that 
" no bounty shall be paid to induce any person to enlist in the mili- 
tary service of the United States," repealed the provision in the act 
of May 11, 190b (3r> Stat. 110), authorizing the payment of a sum 
equal to three months' pay to any honorably discharged soldier upon 
his reenlistment within three months after his discharge : 

Hi /c/, That the three months' gratuity authorized by the act of 
May 11, 1908, upon the reenlistment of an honorably discharged sol- 
dier is not a bounty within the prohibition of the act of May 18, 
1917. and that the former act was not repealed bv the latter. 

Ops. J. A. G. 72-030. Sept. 26, 1917. 

PAY AND ALLOWANCES II, A 2 : Subsistence of officers on Army trans- 
ports. 

There is no authority of law for the allowance of free subsistence 
to officers stationed on Army transports. 
Ops. J. A. G. 94-100, Oct. 15. 1917. 

Naval officers in charge of naval gun crews on United States Army 
transports are not entitled to their subsistence at Government ex- 
pense. 

Ops. J. A. G. 94-124.1, Oct. 8, 1917. 

PUBLIC PROPERTY I : Illegal sale. 

Where an officer sold an old storehouse on a Government reserva- 
tion under instructions from the War Department, but without the 
inspection and survey required by section 1241, Revised Statutes: 

Held, That the sale was illegal, and, as the money had not been de- 
posited in the Treasury, the officer should be directed to refund the 
same to the purchaser and, after submitting the property to inspec- 
tion, to sell it in accordance with the method prescribed by para- 
graph 680, Army Regulations. 

Ops. J. A. G. 80-132, Sept. 26, 1917. 



62 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

RANK II: Effect of service in National Guard for purpose of determining 
rank. 

The National Guard as an organization never becomes federalized. 
Its members become a Federal force only when drafted into the Army 
of the United States, and its officers become officers of the United 
States only when, upon the draft, they become appointed officers of 
the Army of the United States. Therefore service as a commissioned 
officer of the National Guard as such, either out of the service of the 
United States or in the service of the United States, for constitu- 
tional purposes, can not be counted in determining rank within sec- 
tion 1219, Eevised Statutes. 

In determining rank of officers of the Army of the United States. 
Eevised Statutes, section 1219, and the one hundred and nineteenth 
article of war must be construed together. The one hundred and 
nineteenth article of war has to do with arranging all officers in the 
service of the United States into classes and specifying the order of 
precedence of these classes. Revised Statutes, section 1219, finds its 
field of operation only in determining rank inter sese between officers 
of the same grade and date of appointment within a single one of the 
several classes enumerated in the one hundred and nineteenth article 
of war. 

Ops. J. A. G. 82-200, Oct. 17, 20, 22, 1917. 

MEMORANDUM FOR THE ADJUTANT GENERAL. 

82-200. 

October 17, 1917. 

Subject: Whether service as a commissioned officer in the National 
Guard in the service of the United States, or otherwise, 
may be counted as service as a commissioned officer of the 
United States for the purpose of determining rank of 
officer of the Army of the same grade and date of 
appointment. 

1. This question has been before this office several times, but has 
never been comprehensively considered. There seems to be a diver- 
sity of view within the department itself to which certain opinions 
and expressions of this office have contributed. I have before me at 
the present time the question of the relative rank of four brigadier 
generals now on duty with the Twenty-eighth Division, and in con- 
sidering that case it is deemed opportune for this office now to en- 
deavor to give final expression to its views. Fair examination of the 
question will show that it is neither obscure nor difficult. 

2. At the base of the matter we find the following statutes : 
"Art. 119. Bank and precedence among Regulars, Militia, and Vol- 
unteers. — That in time of war or public danger, when two or more 
officers of the same grade are on duty in the same field, department, or 
command, or of organizations thereof, the President may assign the 
command of the forces of such field, department, or command, or of 
any organization thereof, without regard to seniority of rank in the 
same grade. In the absence of such assignment by the President, 
officers of the same grade shall rank and have precedence in the fol- 
lowing order, without regard to date of rank or commission as between 
officers of different classes, namely : First, officers of the Regular Army 
and officers of the Marine Corps detached for service with the Army 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 63 

by order of the President ; second, officers of forces drafted or called 
into the service of the United States ; and, third, officers of the volun- 
teer forces: Provided, That officers of the Regular Army holding 
commissions in forces drafted or called into the service of the United 
States or in the volunteer forces shall rank and have precedence under 
said commissions as if they were commissions in the Regular Army ; 
the rank of officers of the Regular Army under commissions in the 
National Guard as such shall not, for the purpose of this article, be 
held to antedate the acceptance of such officers into the service of the 
United States under said commissions." 

Section 1219, Revised Statutes: 

" In fixing relative rank between officers of the same grade and 
date of appointment and commission the time which each may have 
actualty served as a commissioned officer of the United States, 
whether continuously or at different periods, shall be taken into 
account. And in computing such time no distinction shall be made 
between service as a commissioned officer in the Regular Army and 
service since the nineteenth day of April, eighteen hundred and 
sixty-one, in the volunteer forces whether under appointment of 
commission from the President or from the governor of a State." 

It is to be observed that section 1219, Revised Statutes, applies to 
officers of the Army, without express regard to classes; and that the 
one hundred and nineteenth article has to do with arranging all 
officers in the service of the United States into classes and specifying 
the order of precedence of these classes. Obviously, an officer of the 
senior class will rank any officer of the same grade in a junior class, 
regardless of respective dates of appointment or other incidents of 
office. In the determination of rank as between officers of the same 
grade and date of appointment of the different classes enumerated in 
the one hundred and nineteenth article, section 1219, Revised Stat- 
utes, can have no application whatever, and, construing the two 
statutes together as they must be construed, the latter finds its field 
of operation only in determining rank inter sese between officers 
of the same grade and date of appointment within a single one of 
the several classes enumerated in the article. Inasmuch as, as a 
practical present-day matter, we are no longer concerned with volun- 
teers, nor with the National Guard called into the service of the 
United States, in which capacity none such are now serving, the 
question specifically applied is, whether such commissioned service 
in the National Guard shall be counted in determining rank where 
grade and date of appointment are the same between (1) Regular 
officers (and Marines attached), and (2) all other officers of the 
Army, which term includes (a) officers of organizations composed 
of erstwhile members of the National Guard, (b) officers of the so- 
called National Army, a term applied to all other additional forces, 
and (c) reserve officers, who fall within the same class. 

3. But, preparing to apply the rule of the statute to the present 
inquiry, what is actual service as a commissioned officer of the United 
States ? In the first place, it must be observed that the service is 
required to be service as a commissioned officer of the United States. 
The service must be as such commissioned officer, perhaps not neces- 
sarily as a de jure but certainly as a de facto officer of the United 
States. The office must be an office of the United States, established 



64 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

in all respects by the laws of the United States, and the appointment 
must be made in the manner provided by the Constitution and laws 
of the United States. 

The method of appointment of officers of the United States is found 
prescribed in section 2, article 2 of the Constitution, which in relevant 
portion is as follows: 

" He (the President) shall nominate and by and with the advice 
and consent of the Senate shall appoint * * * all other officers 
of the United States whose appointments are not herein otherwise 
provided for, and which shall be established by law, but the Congress 
may by law vest the appointment of such inferior officers, as they 
think proper, in the President alone, in the courts of law, or in the 
heads of departments." 

All officers of the United States must be appointed in accordance 
with the above provision of fundamental law. National Guard 
officers are not so appointed. They are appointed by and under State 
sovereignty. 

Furthermore, by the context, the section clearly has reference to 
service in the Army of the United States. Service in the National 
Guard, whether when called into the Federal service or otherwise, 
can not be the service defined which the statute requires. The officers 
of the National Guard are not officers of the United States, and the 
National Guard itself, whether within or without the service of the 
United States, is no part of the Army of the United States. 

4. Whatever be the degree of Federal control over the National 
Guard, when it is not in the service of the United States or when it 
is, that institution is primarily a State institution; its officers are 
State military officials, appointed by the governor and subject largely 
to his and other local control. The sharp legal and historical dis- 
tinction between National Guard of the several States, an alter nomen 
for the militia of the several States, and the Army of the United 
States is fundamental, and can not be broken down or obscured by 
legislation, and the existing legislation has no such effect. To be sure, 
the National Guard under the national-defense act is something other 
than the National Guard as it had existed under the Dick bill and as it- 
had existed prior to the Dick bill. It can not be said, however, that 
it is, or can be, divested of its fundamental militia status. True, 
under existing legislation there is superimposed upon the militia 
status of the individual another obligation, namely, the obligation to 
serve in the Army of the United States Avhen the individual militia- 
man is drafted therein. But, obviously, that obligation adds nothing 
whatever to the national power which Congress, under its authority 
to raise and support armies, could otherwise have asserted over mem- 
bers of the Organized Militia, regardless of such personal obliga- 
tions. Members of the Organized Militia are subject to be drafted 
into the Army of the United States, as are all other citizens of the 
United States, and the personal obligation upon their part adds 
naught to that national power. 

The militia status of the National Guard remains unaffected up to 
the point where the individual members thereof are by draft placed 
into the Army of the United States. Whether the National Guard, 
therefore, be not in the service of the United States, or whether it be 
called into the service of the United States as such for the constitu- 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 65 

tional purpose " to execute the laws of the Union, suppress insurrec- 
tion, and repel invasion," it is still a State force, and its relation to 
the Federal Government is that of a State military force subject, 
under the Constitution, to be requisitioned as such for limited Fed- 
eral purposes. The organization never becomes federalized. Its 
members become a Federal force only when drafted into the Army of 
the United States, and its officers become officers of the United States 
only when upon the draft they become appointed officers of the Army 
of the United States. 

5. The national defense act never loses sight of this distinction. 
The constitutional power of Congress to call the militia into the Fed- 
eral service is invoked, for instance, by section 101 of the bill, which 
contemplates the call of the National Guard as such; that is, as 
Organized Militia for the specified constitutional purposes. When in 
the active service of the United States under such a call the militia 
serves as militia of the several States. But an entirely different con- 
stitutional power is invoked by section 111 of the national-defense 
act. That section provides for the draft of the members of the 
militia into the Army of the United States for general war purposes. 
There the constitutional power of Congress to raise and support 
armies is invoked, and in such a case the members of the National 
Guard are drafted not as members of the National Guard or militia, 
nor do they serve as militia, but as members of the Army of the 
United States. There is no such thing, then, as drafting the National 
Guard into the Federal service as such; only its members as indi- 
vidual citizens are drafted. The National Guard, with its officers, 
its organizations, and its organizational relations, is not drafted. 
That this is so the act clearly recognizes. It provides for the draft 
of " any or all members " of the National Guard and of the National 
Guard Reserve. It refers to the members of the National Guard as 
" persons so drafted." It requires that the persons so drafted " shall 
be embodied in organizations corresponding as far as practical to 
those of the Regular Army, or that they be otherwise assigned as the 
President may direct." It provides for the commissioning, by the 
President, of the officers of said organizations; and, most potent of 
all, provides that " all persons so drafted shall from the date of their 
draft stand discharged from the militia." There is absolutely no con- 
nection, in the eyes of the law, between the status which an individual 
occupies as a member of the National Guard and the status which he 
occupies after he has been drafted into the service of the United 
States, and there is no connection between those two status. The 
service of an officer in the former capacity is not service as a commis- 
sioned officer of the United States, nor is k service in the Army of the 
United States. The service of an officer in the latter capacity is, of 
course, service as a commissioned officer in the Army of the United 
States. Nor is this distinction obliterated by the fact that section 1 
of the national-defense act includes as one of the component elements 
of the Army of the United States " the National Guard while in the 
service of the United States." The National Guard called for consti- 
tional purposes into the service of the United States is obviously not 
a part of the Army, the entire act preserves the distinction, and the 
phrase quoted can have reference only to the members of the National 
Guard drafted into the Army. 
151738—20 5 



66 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 

It is obvious, therefore, that service as a commissioned officer of the 
National Guard when not in the service of the United States, or when 
called into the service of the United States for constitutional pur- 
poses, can not constitute the service which section 1219 of the Re- 
vised Statutes contemplates. 

6. But there is a suggestion that the one hundred and nineteenth 
article of war, wherein it establishes an order of class precedence 
placing the militiaman in the service of the United States ahead of 
the volunteer, operates as a repeal of section 1219, Revised Statutes. 
But, as hereinbefore adverted to, the evident purpose of the one 
hundred and nineteenth article of war was to arrange the order of 
precedence of the several classes of the commissioned officers of the 
forces in the service of the United States, and not to determine the 
rank and precedence as among the officers of the different classes. 
Whatever inference may be had from ranking the National Guard 
called into the service of the United States ahead of the volunteer 
as a class, that inference can not go so far as to operate as a repeal 
of section 1219, Revised Statutes. The sections can stand together. 
Indeed, considering their different purposes, there is ho conflict be- 
tween them. They are not even in pari materia, and there can not 
be found the slightest authority among all the principles of statutory 
construction for holding that section 1219, Revised Statutes, was 
in the least impaired by the change of precedence in class in the one 
hundred and nineteenth article of war. If those who framed the 
new one hundred and nineteenth article had intended to accomplish 
what some think they did accomplish by that article, they should 
have amended section 1219 of the Revised Statutes. 

7. I know there was an expression in a recent opinion by this office 
upon the same subject which tends to confuse the distinction between 
an officer of the National Guard who had been drafted as an indi- 
vidual into the Army of the United States and thereupon appointed 
by the President as an officer, and his status as an officer of the Na- 
tional Guard called into the Federal service as such, but that expres- 
sion was inadvertent, and the attention of the office was not especially 
directed to it. And, further, in an opinion by this office dated No- 
vember 16, 1916, it was said that service as a commissioned officer of 
the National Guard called into the service of the United States was 
commissioned service within the meaning of said section 1219. Re- 
vised Statutes, but for the reasons hereinbefore advanced, in my 
judgment that opinion of this office was clearly wrong and proceeded 
upon erroneous reasons. The reasoning there employed was that the 
term " volunteer forces " as used therein had reference to all forces 
in the actual service of the United States other than the Regular 
Army. But this reasoning is beside the point, as the statute itself 
requires service as a commissioned officer of the United States, and 
the distinction made in the concluding sentence of the section is for 
the purpose of establishing a parity for the purpose between service 
in the Regular Army and in the Volunteers, and not for the purpose 
of including within the service defined by the statute any service not 
rendered as a commissioned officer of the United States. But that 
reasoning is otherwise erroneous. The term " volunteer forces " as 
there used could not have included service in the Organized Militia 
called in the service of the United States, for the statutes as they 
existed at that time, and as they still exist, make a specific distinction 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 67 

between the "volunteer forces" and the militia called into the serv 
ice of the United States. See the old one hundred and twenty-fourth 
article of war (as well as the present one hundred and nineteenth 
article of war). That article established the order of precedence of 
the several classes as Regulars, Volunteers, and the Militia, called 
into the service of the United States in the order named. So the law 
remained until the article was amended in 1910, so as to exchange 
the position of the Volunteers and the Organized Militia in the serv- 
ice of the United States and place the Organized Militia so it would 
have rank and precedence as a class over the Volunteers; and, of 
course, the one hundred and nineteenth article of war does no more 
than preserve that precedence. While the order of precedence as 
between classes was changed, section 1219 of the Revised Statutes, 
establishing rank within classes, remained amended. 

8. As another reason this office said: 

" The National Guard in the service of the United States during 
the last few months has served in the same capacity as would any 
volunteer forces under the same circumstances, and the benefits of 
training incident thereto have presumably been equal to those which 
would have obtained in a volunteer force of the strictly legal char- 
acter." 

But there the opinion distinctly enters the field of legislation. 
Besides, that reasoning involves a fact which may be open to dispute. 
Moreover, as a legal concept, the distinction between the volunteer 
and the National Guardsman called into the service of the United 
States for constitutional purposes can not be thus dismissed. The 
volunteer was a part of the Army of the United States; the National 
Guardsman under those circumstances is not. The volunteer was sub- 
ject to the performance of military duty the world over; the National 
Guardsman only within the territorial limits of the United States. 
The primary purpose of the one was to fight the battles of this country 
wherever the war might be waged ; the primary function of the other 
is to preserve the peace and repel invasion. True it is that when 
engaged in the same theater the officer called into the service for 
constitutional purposes and the officer who has been appointed in the 
drafted forces now rank together, and both rank the volunteer in the 
same theater, and both rank behind the regular. But when the officer 
of the National Guard called into the service of the United States 
figures in the classification, the military forces are operating at home. 
When thus operating there could in fact be cogent reasons for ranking 
the National Guardsman as a class ahead of the volunteers. The 
law requires that in such circumstances the National Guardsman shall 
be called out first. While thus engaged in defense of the home soil, 
placed there by virtue of his position as a National Guardsman, in 
advance of the volunteer, whose primary purpose is not ordinarily 
for such local defense, his order of precedence ahead of the volunteer 
may for those reasons alone be justified. It does not follow, however, 
that when the officer of the National Guard is divested of his status 
as a National Guardsman and is no longer serving as such, but is 
appointed to and serving in the Army of the United States, that he 
should be permitted to count the service which was not rendered in 
the establishment to which he has been appointed.* I am reminded 
also that National Guard officers drafted into the Army of the United 
States have been held by the comptroller to be entitled to count their 



68 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

service in the National Guard for purposes of computing longevity 
pay, but that is beside the question. Rank here is a mere matter of 
the statute, to be determined under the statute and not by general 
considerations of service and compensation therefor. 

9. For the reasons herein advanced I am convinced that an officer 
of the Army of the United States may not count his commissioned 
service in the National Guard when called into the service of the 
United States for constitutional purposes in order to establish his 
rank as over other officers of the same grade and date of appointment 
who have had former commissioned service as an officer in the Army 
of the United States. 

RANK II: Method of determining. 

Under the thirty-eighth section of the national-defense act of June 
3, 1916, and the one hundred and nineteenth article of war, captains 
in the Regular Army assigned to active duty as junior military 
aviators and automatically thereby obtaining the rank of major out- 
rank and have precedence over officers of the same grade in any 
forces drafted or called into the service of the United States, such as 
the Officers' Reserve Corps. 

Ops. J. A. G. 82-200, Oct. 12, 1917. 

STATE LAWS: Applicability of, to Federal operations. 

In connection with certain construction work on a military reser- 
vation by a contractor, the State authorities called upon the con- 
structing quartermaster to make a deposit with the State treasurer 
of 1^ per cent of the pay of the workmen engaged in hazardous 
work — upon scaffolding and the like — in accordance with the re- 
quirements of the State law. 

Held, That the State authorities were without jurisdiction to re- 
quire the deposit demanded, for the reason that the operations of 
the Federal Government are entirely beyond the power of State 
regulation ; and for the further reason that the work in question was 
carried on within a military reservation over which the State had 
ceded its jurisdiction. 

Ops. J. A. G. 76-050, Sept. 5, 1917. 

UNIFORM I : Right of reserve officers to wear. 

A reserve officer not called into active duty is not authorized to 
wear the uniform of the United States Army. 
Ops. J. A. G. 96-140, Oct. 30, 1917. 

UNIFORM I: Right of Home Guards to wear. 

Home Guards may not, without authority therefor from the Sec- 
retary of War, wear any uniform which bears a prohibited similarity 
to the uniform of the United States; but the Secretary of War has 
power to grant such authority on condition that the uniform bear 
some mark or insignia distinguishing it from the uniform pre- 
scribed for the United States Army. 

Ops. J. A. G. 58-980, Oct. 17, 1917. 

WAR I, C: War powers of Executive. 

The Executive has power in time of war, when reasonable necessity 
ftxisita t.hftrp.for. to take the necessary means to prevent the flying 



DIGEST OF OPINIONS JUDGE ADVOCATE GENEKAL OF ARMY. 69 

of aircraft during war, except such as is permitted by the War 
Department. 

Ops. J. A. G. 6^228.1, Oct. 11, 1917. 



NOTES ON ADMINISTRATION OF MILITARY JUSTICE. 

SENTENCES: Dishonorable discharge. 

Iii a recent case the court imposed a sentence of dishonorable dis- 
charge, total forfeitures, and confinement at hard labor for two years 
(mitigated to one year by the reviewing authority) upon a soldier 
convicted of having "a rusty pistol for inspection" and failing "to 
clean his pistol" after having been "directed" and "having received 
a lawful order" to do so. The Judge Advocate General, in recom- 
mending that the unexecuted portion of the sentence be remitted 
and that the soldier be restored to duty upon his written application 
therefor or be allowed to reenlist if he so desires, made the following 
comment : 

"In time of war, when the Nation is straining every nerve to build 
up a large and efficient Army and is even resorting to a selective 
draft for the purpose of procuring men, it seems incongruous and 
inconsistent to impose a sentence of dishonorable discharge for such 
an offense as is shown to have been committed in this case. To re- 
quire the Government to guard and subsist this man for a year while 
he performs no service, in face of the fact that his offense could have 
been more effectively punished by disciplinary measures not involv- 
ing dishonorable discharge, is to impose an unnecessary burden upon 
the Government and possibly to subject some other citizen to com- 
pulsory military service in his stead." 

TRIAL: Evidence; Improper questions. 

hi several recent cases each of the judge advocates, in begin- 
ning the examination of witnesses, propounded a general question 
practically involving a verbatim reading of the charges and specifica- 
tions and concluding with a request that the witness state to the 
court what he knows about the case. Such practice is loose and ob- 
jectionable, as encouraging irrelevant and hearsay testimony, and 
should be discontinued, as it constitutes a leading of the witness. 
He is thus instructed as to the particulars about which he is to testify 
and the charge he is expected to substantiate. A witness should 
properly be examined on specific interrogatories and not be called 
upon to make a general statement of what he knows about the matter 
under investigation in answer to a single general question. (Dig. 
Ops. J. A. G. 1912, 531, note 2.) 

CHARGES OF OFFENSES. 

The review in this office of records of trial by general court-martial 
discloses a quite general practice of bringing charges for offenses 
committed prior to March 1, 1917, under the new Articles of War, 
which became effective on that date. Especially is this true with 
respect to charges of desertion. 

Section 5 of the act of August 29, 1916, containing the new Articles 
of War, provides for the continuance in force of the old articles for 
the prosecution of offenses committed prior to March 1, 1917. 



70 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

While the error referred to above is not fatal to the validity of the 
trial, the practice of laying charges under the new articles for offenses 
committed prior to their taking effect is irregular and should be dis- 
continued. For all offenses committed prior to March 1, 1917, the 
charges should be brought under the old articles. 



DECISIONS OF COURTS. 

SELECTIVE DRAFT ACT : Constitutionality. 

Maurice Sugar and others were indicted for conspiracy to aid and 
procure persons to violate the act of May 18, 1917. On motion to 
quash the indictment, the court held that the act does not violate the 
thirteenth amendment forbidding involuntary servitude; that it does 
not violate the fourteenth amendment forbidding abridgment of 
privileges or immunities of citizens; that it does not violate the fifth 
amendment, or the constitutional inhibition of the delegation of 
legislative or judicial powers to an executive officer; that the provi- 
sion for the raising of an army by draft is a proper exercise of the 
power of Congress to raise and support armies; that the drafting 
of the National Guard does not call forth the State militia as such; 
and that the act is constitutional. United States v. Sugar, U. S. 
Dis. Ct. E. D. Mich. July 10, 1917, 243 Fed. 423. 

John Story was imprisoned under commitment for unlawfully 
failing to register for military duty as required by the act of May 
18, 1917, and made application for a writ of habeas corpus. In 
denying the writ the court held the act constitutional, overruling 
the contention that its provisions violate the thirteenth amendment. 
It also specifically met the argument that the petitioner had the 
right to remain in the realm and could not be drafted for service 
overseas by saying: 

"But our organic law does not so shackle the gigantic energies 
of the great Republic. After the enumeration of the powers of 
Congress, among them, as we have seen, ' the power to raise and sup- 
port armies,' in clause 18 of article 1, section 8, it provides the 
power 'to make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other powers 
vested by this Constitution in the Government of the United States, 
or in any department or office thereof.' Here is the great reservoir 
of power to save the national existence. 

" It is said that there is no express power to send armies beyond 
the sea. True; but there is no express power to enact the criminal 
laws of the United States: none to convey the oublic domain, to build 
transcontinental railroad nor to construct the Isthmian Canal; nor 
to create the Interstate Commerce Commission; nor to declare the 
Monroe Doctrine; nor to make the Louisiana Purchase; nor to buy 
Alaska; or to take over Porto Rico and the Philippines. This has 
all been done under the great power to promote the general welfare, 
just as the selective army will be created under the law here assailed 
' to provide for the common defense.' And beyond and above all 
is the inherent power of every nation, however organized, to utilize 
its every man and its every energy to defend its liberty and to de- 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 71 

feat the migration to its soil of mighty nations of ferocious war- 
riors, whose barbarous inhumanity for three years has surpassed 
all others since the death of Attila, the Scourge of God." 
Story v. Perkms, U. S. Dist. Ct. S. D. Ga., 243 Fed., 997. 

SELECTIVE DRAFT ACT: Constitutionality; Finality of decisions of local 
boards. 

John Angelus, a citizen of Austria, claimed exemption before a 
local board on account of alienage and filed an affidavit in support 
thereof. The local board denied his claim, and the district board 
affirmed the action of the local board. Angelus brought a bill in 
equity to restrain the local board from certifying his name to the 
military authorities for military service. The district court dis- 
missed the bill for lack of jurisdiction, saying: 

" I think Congress had no intention that the courts should inter- 
fere with this drafting proposition. It is a military measure in 
time of war, and it would be most subversive of military control 
and the proper disposition of this extremely difficult neAv problem 
if the courts should interfere in this situation. If Congress had 
intended that the courts should review the action of the local and 
district boards, it would have so provided, and unless an appellate 
court says to the contrary I am of the opinion that a district court 
of the United States should resolve any doubt in favor of the Gov- 
ernment; any other view might tend seriously to embarrass the work 
of raising an army with its manifold difficulties and its tremendous 
detail. If those who believe they are entitled to exemption were 
able to apply to the courts, it would be a most disturbing situa- 
tion and directly contrary to my understanding of the intent of 
Congress. Congress intended this to be an executive measure, to 
be carried out by the executive branch of the Government without 
interference of the courts." 

Upon appeal the Circuit Court of Appeals affirmed the order of 
the district court, holding that, under the power to raise and sup- 
port armies, Congress has the right to raise armies by conscription, 
and that it did not by the terms of the act unconstitutionally dele- 
gate its powers to the President. As to the proper jurisdiction of the 
local and district boards, the court said : 

" But it is said that the act is unconstitutional in that it deprives 
the complainant of his liberty without due process of law, contrary 
to the fifth amendment of the Constitution, which declares that no 
person shall be deprived of life, liberty, or property without due 
process of law. The Supreme Court has, however, held that a 
judicial trial does not prevent in every case. Murray's Lessee v. 
Hoboken Land <& Improvement Co., 18 How., 272, 280, 1855. And 
in United States v. Ju Toy, 198 U. S., 253, 263, 1905, the court, 
speaking through Mr. Justice Holmes respecting the Chinese ex- 
clusion act, under which the decision of the Department of Labor 
is final as to the exclusion, said : ' If for the purpose of argument 
we assume that the fifth amendment applies to him and that to 
deny entrance to a citizen is to deprive him of liberty, we never- 
theless are of the opinion that with regard to him due process of 
law does not require a judicial trial.' That the decision of the 
question whether a person of Chinese descent was born in the United 
States and therefore entitled to enter the country, or whether he 



72 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY 

was born in China and under the exclusion act not entitled to enter, 
may be intrusted to an executive officer whose decision is final and 
that it is due process of law, is established law. We see no reason 
why the same doctrine is not equally applicable to the case in hand. 
And we therefore hold that the complainant is not deprived of 
due process of law bybeing compelled to submit to the final decision 
of the local and district boards the question whether he is a subject 
of Austria-Hungary and whether he has not declared his intention 
to become a citizen of the United States. 

******* 

" If the complainant is, as he alleges, a subject of Austria-Hungary 
and has never declared his intention to become a citizen of the United 
States, as he also alleges, it is perfectly clear that he is not subject 
to the draft. Whether his allegations in this respect are true must, 
however, be determined in the manner prescribed by the act. 

" It appears from the allegations of the complaint that the com- 
plainant filed an affidavit claiming exemption by reason of the fact 
that he was an alien and that the local board denied his application 
and that he appealed to the district board, which affirmed the local 
board. It thus appears that the complainant was heard, and it is 
nowhere alleged that he was denied a full hearing or that the board 
rejected or refused to consider any evidence that he was entitled to 
present. In the absence of such a showing we have no doubt that the 
decision of the board is final and can not be interfered with by the 
courts. 

" We do not, however, agree with the statement of the district judge 
heretofore quoted that there can be no interference of the courts in the 
action of these boards. We think a decision of the boards is final only 
»vhere the board has proceeded in due form and where the party in- 
volved is given a fair opportunity to be heard and to present his evi- 
dence. But if an opportunity to be heard should be denied, there can 
be no doubt as to the right of the aggrieved party to come into the 
courts for the protection of his rights. And we do not believe that 
the district judge meant to say that a decision must be regarded as final 
under such circumstances. 

" The law courts have a general superintending control by certi- 
orara over all inferior tribunals acting in a judicial or quasi judicial 
character. And jurisdiction is not entirely taken away by the words 
of a statute which declares that the judgment of the inferior tribunal 
shall be final. 

" There can be no doubt, therefore, that under the conscription 
act, where a board has denied a full and fair hearing to an indi- 
vidual claiming exemption from military service, he might, if re- 
strained of his liberty, sue out a writ of habeas corpus and obtain 
his liberty. 

" But whatever remedy the complainant may have or not have 
there can be no doubt that he is not entitled to the relief he asks 
in his bill of complaint. * * * 

" While disagreeing, therefore, with the opinion expressed by 
the district judge that the courts can not interfere with the action 
of the boards and holding as we do that the civil courts can afford 
relief from orders made by such boards in any case where it is 



DIGEST OF OPINIONS JUDGE ADVOCATE GENEBAL OF ARMY. 73 

shown that their proceedings have been without or in excess of 
their jurisdiction or have been so manifestly unfair as to prevent 
a fair investigation, or that there has been a manifest abuse of the 
discretion with which they are invested under the act, we never- 
theless approve the conclusion he reached that the bill should be 
dismissed." 

Angelus v. Sullivan, U. S. C. C. A. 2d Circ. October, 1917, 45 Wash. 
L. Rep. 691. 

SELECTIVE DRAFT ACT: Exemptions. 

Held, That a person who enlisted in the Regular Army for seven 
years in the year 1914 and purchased his release and was honorably 
discharged in April, 1916, was not exempt from the draft ; that the 
act of May 18, 1917, specifies the exempted classes in clear and un- 
ambiguous language, and ought not to be enlarged by judicial con- 
struction. The petition for the writ of habeas corpus was accord- 
ingly dismissed. 

Re Jack Cohen, decided Oct, 17, 1917, by U. S. District Court for 
District of Mass. 

Blackington enlisted in the National Guard. Although he was 
oelow the minimum height and was suffering from a depressed 
fracture of the skull, he was certified by the medical examiner as 
being above height and fit for military service. This certification 
was made by the medical examiner through personal malice against 
Blackington. Blackington was drafted into the Federal service as 
a member of the National Guard and was passed by the regular 
medical examiners. Held, That although Blackington actually was 
and is unfit for military service, he has no ground for complaint. 
The petition for writ of habeas corpus was therefore dismissed and 
the writ discharged. 

Re Carl Blackington, decided Oct, 17, 1917, by U. S. District Court, 
District of Mass. 

PERIOD OF ENLISTMENT: National defense act; Effect of unauthorized 
furlough. 

Roach enlisted on April 24, 1914, in the Alabama National Guard 
for the period of three years. On June 29, 1916, he took the oath 
prescribed by section 70 of the national defense act. On July 1, 
1916, the company of which Roach was a member was mustered into 
the service of the United States. On April 24, 1917, Roach requested 
to be furloughed to the National Guard Reserve, but his papers were 
not propery made out. He continued to do duty until June 22, 1917, 
when his company commander again sent a request that Roach be 
furloughed to the Reserve. While awaiting action on the request 
the company commander permitted him to surrender all Government 
property, gave him transportation to his home, and directed him to 
go there and await receipt of papers evidencing his furlough. On 
July 26, 1917, Roach's request for furlough to the Reserve was re- 
turned from headquarters disapproved. Shortly thereafter, and 
prior to August 5, 1917, Roach was informed that his request for 
furlough had been denied and was ordered to report back to his 
company for service. This he declined to do, and had an alterca- 
tion with the officer who ordered him to return to his company. He 



74 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

was placed in the Montgomery County jail under arrest pending his 
trial by military authorities on the charge of striking a superior 
officer. 

He secured a writ of habeas corpus. The return of the sheriff 
to the writ showed that he was holding Roach under the circumstances 
above stated. 

Held, That under the provisions of the national defense act an 
enlisted man is not automatically furloughed to the Reserve upon 
the expiration of his enlistment; that the acts of the company cap- 
tain without the approval of the War Department could not operate 
as a discharge of Roach or as a furlough to the Reserve: and that 
Roach be remanded to the custody of the United States military 
authorities and his petition for discharge on habeas corpus be denied 
and dismissed. 

Ex pwte Roach, U. S. Dist. Ct. N. D. Ala. Aug. 14, 1917, 244 
Fed. 625. 

SELECTIVE DRAFT ACT: Draft of alien minor enlisted in National 
Guard; jurisdiction of civil courts. 

Hackenberg, a native of Austria, who came to the United States 
in June, 1914, enlisted in June, 1915, in the National Guard of Ohio, 
declaring himself to be 21 years of age. On July 2, 1916, he took the 
Federal enlistment oath prescribed by section 70 of the national 
defense act, after his company and regiment had responded to the 
mobilization order of the President for service on the Mexican bor- 
der. He was mustered out of the Federal service on March 2, 1917. 
On July 10, 1917, he was called into Federal service, pursuant to 
the second paragraph of the selective draft act of May 18, 1917, and 
reported for duty. On July 30 he was placed under arrest, and on 
August 3 the charge of violating the fifty-fourth article of war by 
fraudulently enlisting was placed against him. Hackenberg was 18 
years of age when he enlisted ; his widowed mother, who was in 
Austria at the time, knew nothing thereof, and is dependent upon 
him for support. On his behalf one Dostal made application for a 
writ of habeas corpus. Respondent's answer and the testimony given 
at the hearing developed the above facts. The court, in dismissing 
the petition, held as shown in the following head notes : 

"As national defense act, June 3, 1916, permits the enlisting of a 
minor over the age of 18 without the written consent of his parent or 
guardian, where one over 18 and under 21, who had enlisted prior to 
the passage of that act, subsequently took the Federal enlistment oath 
prescribed by section 70 thereof, the defects in his original enlistment 
were immaterial, and any right of the parent or guardian to reclaim 
his cutody or control was extinguished. 

" An alien, offering to enlist and accepted as a soldier, can not 
avoid' his contract of enlistment, and thereby escape liability for 
service or to punishment, especially as Comp. St. 1916, sec 1888, 
providing that no person who is not a citizen, or who has not made a 
legal declaration of his intention to become a citizen, shall be enlisted 
for a first enlistment, is limited to enlistments in time of peace. 

" There is nothing in the treaty between the United States and the 
Government of Austro-Hungary invalidating an enlistment by a na- 
tive of Austria. 

" National defense act, section 58 (Comp. St. 1916, sec. 3044) pro- 
vides that the National Guard shall consist of the regularly enlisted 



DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF ARMY. 75 

militia, etc. Section 70 provides that enlisted men in the National 
Guard, whose enlistment contracts contain an obligation to defend 
the Constitution of the United States and obey the orders of the 
President, shall be recognized as members thereof, and that others 
shall not be so recognized until they have signed the enlistment con- 
tract and taken the oath therein provided. Section 111 (Comp. St. 
1916, sec. 3045) and selective draft law, May 18, 1917, authorize the 
President to draft all members of the National Guard into the mili- 
tary service of the United States. Held, that an order of the Presi- 
dent, calling a company and regiment of the National Guard into the 
Federal service, made a member of such company and regiment, 
whose original enlistment contract contained the obligation pre- 
scribed by section 70, and who, when previously called into the Fed- 
eral service, had taken the additional oath prescribed by that section, 
a soldier of the United States Army subject to military trial or 
punishment, though he had not consented to be mustered into the 
military forces of the United States under such order. 

" Where a minor enlists without the written consent of his parent 
or guardian an application by the parent or guardian for his release 
must be made with reasonable diligence after acquiring knowledge of 
the enlistment, and before an offense has been committed by the 
minor, and after an offense has been committed, and especially after 
he has been placed under arrest and charges have been preferred 
against him, it is too late for the parent or guardian to oust the juris- 
diction of the military authorities by an application for a writ of 
habeas corpus. 

" That an enlisted soldier has a mother, of whom he is the only 
support, does not make void his contract of enlistment. 

" One who enlisted in the National Guard, was accepted, took 
the prescribed oath, and later took the Federal enlistment oath, 
as prescribed by national defense act, June 3, 1916, c. 134, sec. 
70, 39 Stat. 201 (Comp. St. 1916, sec. 3044i), and received pay 
and clothing over a long period from the State and Nation, is a 
soldier, subject to the jurisdiction of a military tribunal for any 
offense committed against military law, though he was under 21 
when he enlisted, and enlisted without the written consent of his 
parent ov guardian, and though he was an alien, who had not made 
the declaration of his intention to become a citizen, and though he 
had a mother dependent upon him for support. 

"If a military tribunal has jurisdiction to try a person charged 
with an offense against military law, the civil courts can not inter- 
fere bv writ of habeas corpus." 

Ex parte Dostal, Dist. Ct. N. D. Ohio, Aug. 15, 1917, 243 Fed. 664. 

STATUS OF NAVAL OFFICER FOR PURPOSES OF COMPUTING PAY. 

"Under act March 3, 1899, c. 413, sec. 13, 30 Stat. 1007 (Comp. St. 
1916, sec. 2818), providing that ' all officers, including warrant officers 
who have been or may be appointed to the Navy from civil life shall 
on the day of appointment be credited, for computing their pay, with 
five years' service,' which entitles the appointee to an increased rate of 
pay, an enlisted man who while in the service took the examination for 
a higher position, and having passed, and two days before his ap- 
pointment, and when it was practically assured, obtained his dis- 
charge from the service, can not be rated as an appointee from civil 



76 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

life in the sense of the statute, but his appointment must be consid- 
ered as a promotion in the service. 

" Where, however, such officer was rated as an appointee from civil 
life, which he was according to the strict letter of the law, for a num- 
ber of years, and vouchers for the increased pay were approved, he is 
entitled to retain such pay up to the time when his rating was cor- 
rected." 

United States v. U. S. Fidelity <& Guaranty Co., U. S. Dist. Ct. 
E. D. N. Y., July 26, 1917, 244 Fed. 310. 

MILITIA: National Guard; Veteran Corps of Artillery. 

" Under Military Law (Consol. Laws, N. Y. c. 36), section 235, pro- 
viding that no person belonging to the active militia of the State 
shall be arrested on any civil process while going to, remaining at, or 
returning from any place at which he may be required to attend for 
military duty, and section 5, defining the ' active militia ' as consisting 
of the military forces known as the National Guard and the Naval 
Militia, the Veteran Corps of Artillery of the State of New York is 
neither a part of the National Guard nor of the Naval Militia, and a 
colonel commandant thereof, who had given a bond for the jail limits 
after his arrest on a body execution, was not entitled to a discharge 
from custody on the ground of his exemption from arrest, where he 
was not attending upon military duty, merely because the organiza- 
tion had engaged in certain preparedness work." 

Andrews v. Gardiner, 166 N. Y. Supp. 933. 



BULLETIN 72. 

OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

APPROPRIATIONS: Civilian labor for police duty. 

It was not contemplated in any appropriation made for either the 
Medical Department or the Quartermaster's Corps to pay for civilian 
labor to do police duty at a base hospital. Such duty should be done 
by the enlisted personnel. 
' Ops. J. A. G. 230.14. Nov. 12, 1917. 

APPROPRIATIONS XXIV: Expense of enforcing regulation under sec- 
tions 12 and 13 of the draft act. 

The expense of conducting investigations and procuring evidence 
against bootleggers, drug users, and prostitutes for violations of the 
regulations under the draft act can not be paid from the appropria- 
tion for " Contingencies of the Army." Such expense should be 
borne bv the Department of Justice. 

Ops. J. A. G. 250.11, Nov. 26, 1917. 

APPROPRIATIONS: Heat and light for Y. M. C. A. buildings. 

The appropriation for furnishing heat and light for buildings 
erected at private cost under the act of May 31, 1902, is not available 
for the installation of heating and lighting fixtures in Y. M. C. A. 
buildings, but only to provide the consumable supplies necessary for 
heating and lighting same. 

Ops. J. A. G. 412.1, Nov. 2, 1917. 

APPROPRIATIONS : Heat and light for Y. W. C. A. hostess houses. 

The appropriation for furnishing heat and light for buildings 
erected at private cost under the act of May 31, 1902, is not available 
for furnishing heat or light for hostess houses of the Y. W. C. A. 

Ops. J. A. G. 680.32, Nov. 24, 1917. 

ARMY I: Composition and organization. 

There is no legal reason why enlisted men of the Regular Army, 
National Guard, National Army, or other divisions of the Army 
may not be regarded as interchangeable or why they should not all 
be carried on the same muster roll. 

Ops. J. A. G. 220.33, Nov. 1, 1917. 

ARMY I G-.d: Medical Department Dental O. R. C. 

While the Dental Corps is included in the Medical Department 
for administrative purposes, it has independent functions, and since 
the act of October 6, 1917 (Public 86, 65th Cong.), makes the per- 
sonnel of that corps the same as that of the Medical Corps, except 
as to number per thousand, the Dental Corps is such a corps as 
should form the basis of an organization in the Officers' Reserve 
Corps. Subsection 2 of section 1 of Special Regulations 43, War 

77 



78 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OP ARMY. 

Department, 1917, may properly be amended so as to authorize the 
commissioning of officers in the Dental Reserve Corps of the Medical 
Department with the same grades and percentages within the grades 
as are permitted by law for the Medical Officers' Reserve Corps. 
Ops. J. A. G. 211.25, Nov. 9, 1917. 

ARMY: Organization — Supply sergeants. 

Provisions for supply sergeants for any organization except Engi- 
neers, unless the term " supply sergeant " is qualified by other lan- 
guage, must be construed to have reference to supply sergeants of 
the class provided for companies, troops, and batteries, and not to 
battalion supply sergeants. 

Ops. J. A. G. 322.56, Nov. 15, 1917. 

ARMY FIELD CLERKS: Service prerequisite to allowances. 

Under the Army appropriation act of August 29, 1916, Army 
field clerks after 12 years' service, 3 years of which shall have been 
on detached duty away from permanent station or on duty beyond 
the continental limits of the United States, or both, are entitled to- 
certain allowances. In computing the 12 years' service, service as 
an enlisted man can not be counted. Service as headquarters clerk 
prior to the passage of the act and as an Army field clerk thereafter 
should be counted. 

Ops. J. A. G. 211.1, Nov. 12, 1917. 

ARTICLES OF WAR LIX, C, I: Jurisdiction of civil courts. 

The civil authorities do not have the legal right to hold in arrest 
for misdemeanors persons in the military service, and it is their 
duty, upon request, to surrender such persons without trial to the 
military authorities. The Government is entitled to the services of 
its soldiers, and local courts should not be permitted to deprive the 
Government of such services. Courts-martial should be availed of 
exclusively for the trial of soldiers Avho offend against local or 
Federal liquor laws. 

Ops. J. A. G. 250.11, Nov. 11, 1917. 

ARTICLES OF WAR LXXXIII C: Limitations of sentences by summary 
courts. 

The forfeiture of pay imposed by a summary court under the 
Fourteenth Article of War may be extended over a greater period 
than three months, provided that the amount forfeited does not 
exceed the amount of the soldier's pay for the three months imme- 
diately succeeding the sentence. As a matter of policy, it is unwise 
to protract undulv the period of forfeiture. 

Ops. J. A. G. 250.41, Nov. 17, 1917. 

CIVILIAN EMPLOYEES XI A: Resignation without due notice. 

A civilian draftsman in the office of the Chief of Ordnance can not 
be required to continue in service against his will. But where he 
resigns and leaves without reasonable notice the record may show the 
fact, in order that the Civil Service Commission may apply its rule 
permitting a refusal to examine or certify an applicant who, within 
one year next preceding the date of his application, has resigned 
without due notice, to the embarrassment of the service. 

Ops. J. A. G. 230.81, Nov. 8, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 79 

CLAIMS XII: Discipline IV, B — Fees for taking depositions. 

Where the law of the place where a deposition is taken does not fix 
any fees therefor, the civil officer before whom a deposition is taken 
for use before a court-martial is entitled to reasonable compensation 
for his services. 

Ops. J. A. G. 250.464, Nov. 15, 1917. 

CLAIMS IV, XII, P: Damage incident to operation of Army. 

Army appropriation act of May 12, 1917, provides for the payment 
of claims for damages to and loss of private property incident to the 
training, practice, and operations of the Army. Claims for damages 
incident to the operation of the Army are claims for damages which 
have been occasioned by an act done in connection with some move- 
ment or activity of the Army, and not in connection with mere main- 
tenance. Hence, damages caused by a Government motor truck not 
used in connection with movement of troops, or by a laundry wagon 
of a post laundry, can not be paid out of this appropriation. 

Ops. J. A. G. 153, Nov. 10, 1917; 152, Nov. 15, 1917. 

CONTRACTS XV : By officer or employee with Government. 

Under present statutory provisions (sec. 41 of Criminal Code; sec. 
3 of act of Aug. 10, 1917) and Army Regulations (par. 521), an offi- 
cer or employee in the military service is prohibited from acting as 
an officer or agent of the Government in making any contract or 
placing any order with a firm or corporation in which he may have 
a pecuniary interest, and from inducing or advising any authorized 
officer to make a contract or place an order with such firm or corpora- 
tion. Otherwise, there is no objection to an officer or employee in the 
military service entering into contractual relations with the Govern- 
ment or owning an interest in a firm or corporation which enters into 
contracts with the Government. 

Ops. J. A. G. 161.44, Nov. 6, 7, 1917. 

CONTRACTS III: Emergency purchases. 

All purchases of military supplies are now emergency purchases 
and are made without advertising. Paragraph 554, Army Regula- 
tions, requires a report of all such purchases exceeding $100 to be 
made to the Secretary of War, but there is no statutory provision, at 
present applicable, which requires such a report, for, so far as section 
3709, Revised Statutes, applies, the Secretary of War has approved 
such purchases in advance by his order of April 12, 1917, and the act 
of June 12, 1906, has no operation when all purchases are emergency 
purchases. 

Ops. J. A. G. 400.123, Nov. 26, 1917. 

DESERTION III, C: Apprehension and delivery of deserters. 

Civilian officers authorized by law to arrest offenders have power 
to apprehend and deliver deserters to the military authorities. When 
they have once arrested a deserter they may deliver him to any desig- 
nated point, regardless of State or other jurisdictional lines. 

Ops. J. A. G. 251.211, Nov. 16, 1917. 

DESERTION VIII : Articles of War CIII — Limitations of action. 

Paragraph 125, Army Regulations, and paragraph 44, Compila- 
tion of General Orders, 1915, are in conflict with the thirty-ninth 



80 DIGEST OP OPINIONS JUDGE ADVOCATE GENERAL OP ARMY. 

article of war, paragraph 148, subdivision d, Manual for Courts- 
Martial, 1917, regarding the statute of limitations affecting desertion. 
The latter are controlling. The statute begins to run on the date 
of the commission of the offense and continues to run until the date 
of arraignment of the accused. Its running is suspended during the 
period of any absence of the accused from the jurisdiction of the 
United States and any period during which by reason of some mani- 
fest impediment the accused was not amenable to military justice. 
Ops. J. A. G. 251.25, Nov. 6, 1917. 

DESERTION V, D: Reward — Reimbursement from deserter. 

There is no statute requiring that the amount of the reward and 
other expenses incurred for the apprehension of a deserter be charged 
against the deserter. The requirement of paragraph 127, Army 
Regulations, may be waived or modified in the discretion of the 
Secretary of War. 

Ops. J. A. G. 251.211, Nov. 1, 1917. 

DISCIPLINE III, XIV, H: Convening authority of courts-martial — Presi- 
dent as confirming authority. 

Where the commanding officer of a tactical division serving within 
the territorial limits of a department is the accuser or prosecutor, 
the duty of ordering the court-martial devolves upon the War De- 
partment, since such tactical divisions have been withdrawn from 
the control of department commanders. And where an officer below 
the rank of brigadier general, belonging to such division, is sentenced 
to dismissal, the proceedings must go to the President for con- 
firmation. 

Ops. J. A. G. 250.42 Nov. 21, 1917. 

DISCIPLINE IX: Procedure of courts-martial — Effect of irregularities. 

The thirtieth article of war provides that when the court requires 
the legal advice of the judge advocate, it shall be obtained in open 
court in the presence of accused. Article 37 provides that errors of 
procedure shall not invalidate a sentence unless the proceedings 
show, in the opinion of the reviewing authority, that the rights of 
the accused have been substantially prejudiced. Failure to have 
accused present at a session where legal advice of the judge advocate 
was obtained is not material unless the substantial rights of the 
accused have been injured. 

Ops. J. A. G. 250.45, Nov. 10, 1917. 

EIGHT-HOUR LAW VI: Extraordinary emergency. 

The employment by the Government of laborers and mechanics 
in excess of eight hours per day, except in cases of extraordinary 
emergency, is prohibited. Everything necessary to be done to assem- 
ble, care for, clothe, shelter, feed, arm, and train the soldiers of the 
National Army is of immediate and imperative necessity. And in 
the employment of labor to carry forward any or all of these pur- 
poses, and in declaring in connection therewith the existence of an 
extraordinary emergency, a very wide discretion must be lodged in 
those officers charged with the performance of these duties. When 
such extraordinary emergency is declared, report should be made 
promptly to the Secretary of War. (A. R. 731.) 

Ops. J. A. G. 230.4423, Nov. 16, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL, OF ARMY. 81 

ENLISTMENT II, C : Involuntary — Discharge of drafted men. 

A district board has no authority to reopen the case of a man who 
has been inducted into the military service ; but the local board may 
reopen his case upon permission or direction of the adjutant general 
of the State. If upon reopening the local board decides that the man 
should have been exempted, it will so notify the adjutant general, 
who will in turn notify the commanding officer at the mobilization 
camp. If a local board has, through error, sent a man to a mobiliza- 
tion camp pending his appeal, and he has been inducted into the 
military service, and thereafter he presents a certificate of exemption 
from the district board, he may be discharged by the division com- 
mander. Other than above stated, a commanding officer or division 
commander has no authority to discharge a man on the ground that 
he should have been exempted by the local board. 

Ops. J. A. G. 324.72, Nov. 22, 1917. 

ENLISTMENT II: Involuntary — Method of correcting rulings of local 
boards erroneously holding men for service. 

The decisions of local boards upon claims for exemptions, includ- 
ing those based upon alienage, are conclusive. Where a man has 
been erroneously certified for service through error of law or noncul- 
pable ignorance of the registrant, his case may be reopened by the 
local board upon request of the adjutant general of the State, either 
on his own motion or on motion of the military authorities or of the 
local board. Compiled rulings of Provost Marshal General, No. 
12, M. 

Ops. J. A. G. 014.311, Nov. 2, 1917. 

ENLISTMENT II: Selective-draft act — Registration of slackers. 

A person who willfully refuses to present himself for registration 
or to submit thereto, as provided in the selective- draft act, should 
be immediately registered and thereafter prosecuted for his misde- 
meanor. It would defeat the purpose of the act were the involuntary 
registration postponed until after service of the sentence imposed for 
the commission of the misdemeanor. 

Ops. J. A. G. 324.71, Nov. 10, 1917. 

ENLISTMENT II: Involuntary — Procedure before local boards under 
selective-draft act. 

Local boards have no power under present presidential regula- 
tions to compel the attendance of witnesses, for the regulations do 
not contemplate the taking of oral testimony, but require the presen- 
tation of evidence bv affidavit. 

Ops. J. A. G. 013".26, Nov. 5, 1917. 

ENLISTMENT II, A: Involuntary — Induction into service. 

A drafted man was on October 6 assigned to a specified company, 
on October 13 was reported physically fit, on October 25 was re- 
jected as physically unfit, and in the evening of October 25 died. 
Held, that his induction into the military service was complete be- 
fore October 25, and that the rejection on October 25 did not, under 
the circumstances, operate as a discharge. 

Ops. J. A. G. 220.46, Nov. 20, 1917. 

151738—20 6 



82 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

ENLISTMENT I, B, 3 : Statutory requirements — Eligibility of women. 

The statutes governing enlistment in the Army do not authorize 
the enlistment of women. Consequently women may not be enlisted 
in the Ordnance Department. 

Ops. J. A. G. 342, Nov. 14, 1917. 

ENLISTMENT I, B, 3: Statutory requirements — Eligibility for Medical 
Enlisted Reserve Corps. 

Only citizens of the United States or persons who have declared 
their intentions to become citizens of the United States are eligible 
for enlistments in the Medical Enlisted Reserve Corps. Japanese 
and Chinese subjects and citizens of the Philippine Islands are, 
therefore, ineligible. 

Ops. J. A. G. 342.18, Nov. 24, 1917. 

FIELD SERVICE: Army Nurse Corps — Commutation of quarters and sub- 
sistence. 

Field service is a term of which the military mind has a fairly 
accurate conception, although it is not easily defined. Going to the 
professional books and the field-service regulations and the drill 
regulations, the term will be found to have reference not only to 
actual service in campaign or in action, but as well to an instructional 
service, which, though instructional, consists of the practice of those 
exercises and duties which are incident to campaign or action, of the 
application of tactical principles to assumed situations with respect 
to an imaginary, outlined, or represented enemy or a particular 
objective. As applied to the Nurse Corps, it means nothing more 
than the discharge of duties usually and ordinarily connected with 
and discharged by a nurse in a base hospital, which, as its name im- 
plies, is a hospital organized for actual and practical service with 
an army in the field. Accordingly, nurses in service at the base hos- 
pital of a cantonment or camp of the National Army are in field 
service and are not entitled to commutation of quarters, of heat or 
light, or of subsistence. 

Ops. J. A. G. 246.84, Nov. 7, 1917, citing Ops. J. A. G. 6-124.4, 
July 6, 1914, and 24 Comp. Dec. 106. 

GOVERNMENT AGENCIES, II, C: Limitations on business of post ex- 
changes. 

Post exchanges can not act as agents for private laundries, for a 
soldier's pay can not be stopped to satisfy a claim of a private person 
or business concern. There is no legal objection to the post exchange 
hiring the laundry done by a private laundry, thus becoming the real 
customer of the laundry, and in turn charging the men just and 
reasonable rates for having their washing done. 

Ops. J. A. G. 486.3, Nov. 8, 1917. 

INCOME TAX: Commutation of quarters, heat, and light. 

Money received as commutation for quarters, heat, and light is 
income within the meaning of the income-tax law. 
Ops. J. A. G. 012.22, Nov. 19, 1917. 

INTOXICANTS: Selective-draft act — Regulations under sections 12 and 
13. 

The regulations of the President under section 12 of the selective- 
draft act prohibiting intoxicating liquors within prescribed distances 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 83 

of military camps do not apply to permanent Regular Army posts. 
The regulations of the Secretary of War under section 13, prohibit- 
ing the keeping or setting up houses of ill fame, brothels, or bawdy- 
houses within prescribed distances of military camps do apply to 
Regular Army posts. 

Ops. J. A. G. 220.46, Nov. 7, 9, 1917. 

LINE OF DUTY II A, 1 b. 

The presumption is that injuries received while a soldier is in ihe 
military service of thp United States occur in the line of duty unless 
they were received while he was absent on furlough or was in a con- 
dition inconsistent with the performance of ordinary military duty ; 
or unless they were received in consequence of willful neglect or 
immoral conduct of the injured. Therefore, where the evidence 
showed only that a soldier of good habits, on post guarding a rail- 
way bridge, was found about midnight lying unconscious about 30 
feet out on the bridge, severely injured, and that he died therefrom, 
a finding that he met his death as the result of his own misconduct 
can not be sustained. So, a man absent on a five-hour pass, who in 
returning attempted to cross the track of a railway company by 
climbing between two cars blocking the crossing, and who was in- 
jured by the sudden starting of the train, was properly found to 
have been injured in the line of duty. So, a man absent from post 
on a 10-hour pass, who was run down by a railway train while walk- 
ing along a railway trestle where soldiers frequently walked, was 
injured in line of duty where the evidence showed he was sober and 
that no proper warning of the approach of the train was given by 
lights or by bell or whistle. 

Ops. J. A. G. 220.46, Nov. 7, 9, 1917. 

MARINE CORPS : Detailed in Signal Corps. 

A member of the Marine Corps detached for service with the 
Army is not, under the national defense act. eligible for detail in or 
attachment to the aviation section of the Signal Corps, and therefore 
can not receive the rating of junior military aviator. 

Ops. J. A. G. 045.3, Nov. 20, 1917. 

MILITARY INSTRUCTION II, B: Section 50, national-defense act. 

Sections 43 and 50 of the national-defense act contemplated stand- 
ard courses of theoretical and practical military training for units 
of the Reserve Officers' Training Corps at educational institutions 
of at least three hours per week per academic year, section 50 fixing 
the completion of two years' academic service by a member of the 
senior division of the Reserve Officers' Training Corps as a condi- 
tion precedent to the right to be furnished commutation of subsistence 
during further instruction. Senate joint resolution 169, public 35, 
Sixty-fourth Congress, first session, required that in the interpreta- 
tion of said section 50, men who had received a course of military 
training substantially equivalent to that prescribed by the regulations 
be given credit therefor. The proper interpretation of said section 
50 as affected by said public 35 is that the requirement of two years' 
academic service can not be satisfied by double work for one academic 
year. (Ops. J. A. G. 350.3, Nov. 13, 1917.) But it is not required 
that the military training should all be acquired at the same institu- 



84 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL, OF ARMY. 

tion. Consequently, a student may be entitled to advanced standing 
in military science where lie has received military instruction sub- 
stantially equivalent to that prescribed by the above-mentioned sec- 
tions of the national defense act. 
Ops. J. A. G. 354.17, Nov. 24, 1917. 

MILITIA: Draft of National Guard officers. 

An officer in the National Guard of Wisconsin called into the Fed- 
eral service July 15, 1917, was ordered to report for duty and await 
orders, and did report for duty on July 21, 1917. By error of the 
military authorities he was not mustered into the service or assigned 
to the performance of any duties. Held, that he should be considered 
to have been accepted into the service of the United States as a mem- 
ber of the Organized Militia on July 21, 1917, and to have been 
drafted into the service of the United States on August 5. 1917. 

Ops. J. A. G. 241.1, Nov. 24, 1917. 

NATIONAL ANTHEM : Misuse of. 

There is no Federal legislation regulating the playing of the na- 
tional anthem, but some States have statutes forbidding playing it as 
part of a medlev. 

Ops. J. A. G. 007.11, Nov. 12, 1917. 

OFFICE IV, A 2 : Acceptance of other office. 

There is no Federal statute forbidding an officer in the National 
Army from holding civil office. The prohibition of section 1222, Re- 
vised Statutes, applies only to officers of the Regular Army on the 
active list. As to others than officers of the Regular Army, the mat- 
ter is one for State regulation. 

Ops. J. A. G. 324.24, Nov. 21, 1917. 

OFFICE III, A: De facto officer — Rights of. 

The commission of a first lieutenant, Medical Reserve Corps, ex- 
pired June 3, 1917, but the officer continued in service without a new 
commission and received pay and mileage as an officer until August 
31, 1917. On September 9 he accepted a commission as captain, 
Medical Officers' Reserve Corps. Held, that from June 3 to Sep- 
tember 9 he was a de facto officer and was entitled to keep the pay 
already received, but was entitled to receive no more pay except for 
the period beginning September 9, when he became a de jure officer. 

Ops. J. A. G. 324.23, Nov. 14, 1917. 

OFFICE IV, E 2 : Dismissal of temporary and provisional officers. 

The President has complete power to discharge any temporary 
officer of the Regular Army holding appointment under section 1 
of the act of May 18, 1917. Commanding generals may appoint 
military boards to pass upon the capacity and fitness of such officer, 
whose findings may be laid before the President for such action as 
he sees fit. (Sees. 1 and 9 of act of May 18, 1917; subpar. 2 of par. 
7, G. O. 76, C. S.) But the President may discharge provisional 
officers appointed under section 23 of the national defense act of 
June 3, 1916, only after due investigation, such as is provided for in 
paragraph 7, G. O. 76, C. S. 

Ops. J. A. G. 324.4, Nov. 17, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 85 

OFFICE I, III A, 8a (4) : Persons required to take oath of office. 

Where positions are specifically provided for and specifically ap- 
propriated for by act of Congress, the holders of such position'must 
take the oath of office prescribed by section 1757, Revised Statutes. 
No modified oath can be substituted therefor. But where positions 
are not so provided for, and the holders thereof are merely desig- 
nated or appointed by the head of a department to perform the 
services and are paid out of a general appropriation for the expenses 
of such department, the taking of such oath can not be required. 

Ops. J. A. G. 230.211, Nov. 19, 1917. 

OFFICE III, B: Promotions in Medical Corps. 

Section 10 of the national-defense act provides that persons here- 
after commissioned in the Medical Corps shall be promoted to the 
grade of captain after five years' service in the Medical Corps and 
upon passing the examinations prescribed by the President for pro- 
motion. Public 86, Sixty-fifth Congress, provides that during the 
present emergency first lieutenants in the Medical Corps of the 
Regular Army and of the National Guard shall be eligible to pro- 
motion as captain upon such examination as may be prescribed by 
the Secretary of War. Construing these provisions together with 
section 111 of national defense act, it is held that all vacancies in the 
Medical Corps must be filled by permanent or temporary promotions, 
according to the character of the vacancy, of officers in the Medical 
Corps below the grade in which the vacancy exists, in order of senior- 
ity, subject to the required examinations. Temporary appointments 
can be resorted to only when possibilities of promotions by seniority 
have been exhausted. 

Ops. J. A. G. 210.2, Nov. 16, 1917. 

OFFICE III : Right of commanding officer — Effect of detail. 

Assignments to commands and to statutory offices are governed 
strictly by law and regulations, but officers assigned to a command 
are subject to the will of the commanding officer and may properly 
be required to perform any duties he may direct them to perform 
(A. R. 746). And a division commander may detail one staff officer 
to perform the duties of another. Accordingly he may detail the 
inspector general of the division to duty as Acting Chief of Staff 
and detail a field officer, on duty with a regiment of the division, as 
acting inspector of the division. Such field officer is not thereby 
made an officer of the Inspector General's Department and can not 
perforin any duties which are specifically required by statute to be 
performed* by an officer of the Inspector General's Department. 

Ops. J. A. G. 322.081, Nov. 8, 1917. 

OFFICERS' RESERVE CORPS: Eligibility of members for boards of ex- 
amination for rating of aviator. 

Members of the Signal Officers' Reserve Corps promoted, ap- 
pointed, detailed, or attached to the Aviation Section of the Signal 
Corps are, if they have the required experience, " officers of expe- 
rience of the Aviation Section of the Signal Corps " qualified to be 
members of boards authorized to examine and certify to the qualifi- 
cations of persons seeking the rating of aviators under section 6 of 
the act of June 24, 1917. 

Ops. J. A. G. 334.1, Nov. 21, 1917. 



86 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

PAY AND ALLOWANCES I, C 8; III, B 4: Allotments and satisfaction of 
private claims against enlisted men. 

A soldier can not legally be deprived of any part of his pay for 
the satisfaction of a private claim, even for the support of his de- 
pendent parents. But he can make a voluntary allotment for such 
purpose. If he allots a portion of his pay for the support of his 
dependent parents, the Government will, under certain circumstances, 
make an additional allowance to the parents pursuant to the war risk 
insurance act of October 6, 1917. 

Ops. J. A. G. 243, Nov. 3, 1917. 

PAY AND ALLOWANCES II, A la: Commutation for heat and light. 

An officer on duty in the field with his regiment is not entitled to 
have heat and light furnished for public quarters occupied elsewhere 
by his family. 
" Ops. J. A. G. 215.2, Nov. 8, 1917. 

PAY AND ALLOWANCES I, A: De facto officers. 

An officer of the Medical Reserve Corps who refused to accept a 
commission in the Medical Officers' Reserve Corps is not entitled to 
receive any pay for services as an officer after June 3, 1917, for since 
that date such officer has been at best but a de facto officer. Pay which 
a de facto officer has received he may keep, but he has no legal claim 
for any pay not yet received. 

Ops. J. A. G. 324.23, Nov. 15, 1917. 

PAY AND ALLOWANCES I, C : Gunner's pay. 

Under section 1343, Army Regulations, 1917, a Coast Artillery 
man rated as a gunner and entitled to pay as such loses such rating 
and right to such pav on being transferred to the Field Artillery. 

Ops. J. A. G. 242.142, Nov. 21, 1917. 

PAY AND ALLOWANCES I, B 6 : Longevity pay. 

The act of June 18, 1878 (20 Stat. 150), providing for credit of 
full time of service for longevity pay has reference to service as tin 
officer or enlisted man in the full military sense. Service in a training 
camp under an enlistment having for its sole purpose training for 
entrance into the Army of the United States as an officer and not 
binding the enlisted man to any service unless accepted as an officer 
can not be counted thereunder. 

Ops. J. A. G. 241.12, Nov. 12, 1917. 

PAY AND ALLOWANCES I, C : Marksman's pay, machine-gun battalion. 

Under Army Regulation 1345 and paragraph 89, Small Arms Fir- 
ing Manual as amended, an enlisted man, qualified as a marksman in 
the machine-gun company of an Infantry regiment, who has been 
transferred to a company in a machine-gun battalion, is entitled to 
the pay of a marksman, for he is still a member of an organization 
armed with the rifle. 

Ops. J. A. G. 242.142, Nov. 2, 1917. 

PAY AND ALLOWANCES I, C 5 : Retirement II, A — Enlistment I, D. 

The Army appropriation act of May 12, 1917 (Bulletin 30, p. 45, 
Pub- No. 11. 65th Cong, p. 39), provides for the restoration of status 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 87 

in the Regular Army of an enlisted man who shall be discharged to 
accept a commission in the Officers' Reserve Corps, in the National 
Guard, or militia organization, or in any volunteer force, and who 
shall enlist within three months after the termination of his connec- 
tion as an officer with that corps, etc. Held, that an enlisted man who 
is discharged from the Regular Army to accept a temporary com- 
mission in the Regular Army would not be entitled upon reenlistment 
to occupy his previous status in the Regular Army. 
Ops. J. A. G. 342.06, Nov. 17, 1917. 

PAY AND ALLOWANCES I, C: Sharpshooter's pay— Aero squadron. 

The Tables of Organization for 1917 show an aero squadron to be 
an organization armed with a rifle, but these tables have no retro- 
active effect. A qualification as a sharpshooter continues for one year 
if no opportunity for requalification is presented within that year 
(A. R. 1345). Therefore an infantryman who qualified as a sharp- 
shooter on July 13, 1915, and was on March 1, 1916, transferred to 
an aerial squadron, was not after March 1, 1916, entitled to pay as a 
sharpshooter, for from March 1, 1916, to July 13, 1916, an aero squad- 
ron was not an organization armed with a rifle. 

Ops. J. A. G. 242.142, Nov. 15, 1917. 

PAY AND ALLOWANCES II, A 2a : Transportation of officer's horse. 

Private mounts of an officer may, upon change of station, be trans- 
ported at public expense only when they are to be used by him at 
his new station in the public service. 

Ops. J. A. G. 94-011, Oct. 31, 1917. 

PAY AND ALLOWANCES II, A 3 : Travel allowance to drafted men. 

A drafted man discharged by competent authority is entitled to 
travel allowance to the place of acceptance for service. But men 
sent to camps under the draft act are not entitled to travel allow- 
ance to the place of reporting to the local board for military service. 

Ops. J. A. G. 513.3, Nov. 22, 1917. 

PAY AND ALLOWANCES II, A 2 : Travel pay of reserve officers. 

A reserve officer making an inspection of the records and accounts 
of the National Guard is entitled to mileage, but is not entitled to be 
reimbursed for actual expenses. Section 67 of the national defense 
act appropriates funds for the actual and necessary expenses incurred 
by officers and enlisted men of the Regular Army when traveling on 
duty in connection with the National Guard, but such funds are not 
available to pay expenses of reserve officers. 

Ops. J. A. G. 245.6, Nov. 10, 1917. 

BANK II, III : Lineal rank, how determined. 

On May 15, 1917, several majors in different departments in the 
Quartermaster's Corps were promoted to be lieutenant colonels. The 
promotions were made according to seniority in the several depart- 
ments to which the officers, respectively, belonged before the con- 
solidation under the act of August 24, 1912 (37 Stat. 591), as re- 
quired by section 3 of said act. The vacancies to which they were 
promoted were original vacancies. Held, that their lineal rank is 
not determined by section 1219, Revised Statutes, for the reason 



88 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

that their advancement was by promotion and not by appointment, 
and that section applies to appointments and not to promotions. 
Ops. J. A. G. 210.725-15, Nov. 19, 1917. 

RANK D: Bank of noncommissioned officers. 

A noncommissioned officer of the Regular Army is senior to a 
noncommissioned officer of the same grade in other forces irrespective 
of date of warrant The reason is that members of the permanent 
Military Establishment are assumed to be more experienced than 
those in the other forces which are more or less temporary. 

Ops. J. A. G. 220.721, Nov. 20, 1917. 

RETIREMENT II, A 4 : Computing war service for. 

The act of March 2, 1907, provides that in computing the 30 years' 
service for retirement of enlisted men, all service in the Army, Navy, 
and Marine Corps shall be credited. The act of March 3, 1899, gov- 
erning service for retirement in the Navy, provides that active war 
service during the Civil or Spanish-American War shall be counted 
as double time. Held, that in computing the 30 years' service for 
retirement of an enlisted man in the Army, time actually served by 
him in the Navy should be computed by Navy standards and war 
service therein should be counted as double time. 

Ops. J. A. G. 220.85, Nov. 5, 1917. 

SELECTIVE-DRAFT ACT : Organization of regiments. 

Under the third paragraph of section 1 of the selective-draft act, 
the President has authority to provide that Cavalry regiments or- 
ganized provisionally as Field Artillery may retain their existing 
noncommissioned personnel until absorbed, but no special authority 
can be given to a single organization to do so. 

Ops. J. A. G. 322.05, Nov. 17, 1917. 

WAR: Censorship of mail in Canal Zone. 

Under section 13 of the act of August 24, 1912, to provide for the 
government of the Canal Zone (37 Stat. 560, 569) the Governor of 
the Panama Canal in time of war has power, under authority given 
by the President, to censor all mail. The espionage act of June 15, 
1917, did not repeal said section 13 of said chapter 390. 

Ops. J. A. G. 000.73, Nov. 5, 1917. 

OFFICERS: Promotions to fill temporary vacancies in the Regular Army. 

[First indorsement.] 

82-121. 

War Department, J. A. G. O., September 4, 1917.— To The Ad- 
jutant General. 

1. By informal indorsement you have referred to this office a 
request for an opinion as to the proper construction to be given that 
part of section 8 of the act of May 18, 1917, considered in connection 
with section 114 of the national defense act, governing the subject of 
promotions to fill temporary vacancies in the Regular Army which 
occur by reason of the appointment of regular officers to higher 
grades in the National Army. Section 8 of the act of May 18, 1917, 
reads in part as follows: 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 89 

" Vacancies in all grades in the Regular Army resulting from the 
appointment of officers thereof to higher grades in the forces other 
than the Regular Army herein provided for shall be filled by tem- 
porary promotions and appointments in the manner prescribed for 
filling temporary vacancies by section one hundred and fourteen of 
the national defense act approved June third, nineteen hundred and 
sixteen; and officers appointed under the provisions of this act to 
higher grades in the forces other than the Regular Army herein 
provided for shall not vacate their permanent commission nor be 
prejudiced in their relative or lineal standing in the Regular Army.'" 
Section 114 of the national defense act provides as follows : 
" In time of war the temporary vacancies created in any grade not 
above that of colonel among the commissioned personnel of any arm, 
staff corps, or department of the Regular Army, through appoint- 
ments of officers thereof to higher rank in organizations composed 
of members taken from the National Guard, shall be filled by tem- 
porary promotions according to seniority in rank from officers hold- 
ing commissions in the next lower grade in said arm, staff corps, or 
department, and all vacancies created in any grade by such tem- 
porary promotions shall be in like manner filled from, and thus 
create temporary vacancies in, the next lower grade, and the vacan- 
cies that shall remain thereafter in said arm, staff corps, or depart- 
ment and that can not be filled by temporary promotions, as pre- 
scribed in this section, may be filled by the temporary appointment 
of officers of such number and grade or grades as shall maintain said 
arm, corps, or department at the full commissioned strength author- 
ized bv law." 

2. In construing the foregoing provisions of the statute it is 
necessary to determine the force and effect to be given to that clause 
wherein it is stated that officers of the Regular Army, appointed to 
higher grades in forces other than the Regular Army, " shall not 
vacate their permanent commissions or be prejudiced in their rela- 
tive or lineal standing in the Regular Army"; and also to that 
clause wherein it is stated that temporary vacancies created in any 
grade not above that of colonel among the commissioned personnel 
of any arm, staff corps, or department of the Regular Army through 
appointment of officers thereof to higher rank in forces other than 
the Regular Army — " shall be filled by temporary promotions ac- 
cording to seniority in rank from officers holding commissions in the 
next lower grade in said arm, staff corps, or department." 

3. It is impossible to read this statute without grasping as its true 
significance the fact that it was intended to enable the War Depart- 
ment to raise and properly officer large armies such as those in process 
of formation at the present time. To accomplish this purpose au- 
thority is extended to commission officers of the Regular Army tem- 
porarily in such other forces as may be raised, and its purpose to 
protect officers so commissioned in their permanent commissions and 
to prevent them from being prejudiced in their relative or lineal 
standing in the Regular Army is unmistakable. Beyond this it was 
not required, however, that the department waste its time and effort 
in dealing with questions of rank and precedence such as would be 
involved if an effort were made to prevent minor variations in rela- 
tive or lineal standing as between officers who choose to remain in the 



90 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL, OF ARMY. 

Regular Army and to serve under their commissions therein, and 
those who choose to accept higher commissions in forces other than 
the Regular Army. If such a course of procedure were to be adopted 
by the War Department, it is perfectly evident that so many changes 
and disturbances among the commissioned personnel of the several 
forces would be required to preserve the relative and lineal standing 
of officers of the Regular Army that confusion would inevitably fol- 
low, efficiency would be impaired, and the usefulness of armies subor- 
dinated to the adjustment of rank and precedence. 

4. From what has just been stated it appears to be desirable to 
adopt a construction, if such can be consistently done within the fair 
meaning and intendment of the statute, which will promote the high- 
est efficiency of the service. Assuming, as we must, that this was the 
purpose of the act, it is difficult to believe that Congress could have 
intended, by the language used, not only to protect regular officers in 
their permanent commissions but to protect them as well from being 
prejudiced, even temporarily, in their relative or lineal standing by 
preventing such of them as accept commissions in forces other than 
the Regular Army from being temporarily ranked by officers of lower 
permanent rank in the Regular Army, but who are advanced therein 
by temporary promotions. On the other hand, it accords with this 
assumed purpose of the law to hold that Congress intended merely 
to protect officers of the Regular Army in their permanent commis- 
sions therein and, as an incident of such protection, to prevent them 
from being prejudiced in their relative or lineal standing as mem- 
bers of the permanent establishment onty. If it be contended that 
this view might result in temporarily giving a junior who had been 
advanced by temporary promotion in the Regular Army higher rank 
than his senior who has accepted a commission in forces other than 
the Regular Army, the answer is that this is a risk the senior assumed 
when he accepted a higher commission in such other forces, a risk 
which the statute did not protect against and which the War Depart- 
ment, as pointed out above, could not well assume to avoid without 
endangering the ultimate success of the great effort upon which it is 
now embarked. 

5. Wnen an officer of the Regular Army leaves his place in the 
permanent establishment to accept temporarily a higher rank in 
another army, it must, I think, be assumed that his commission in 
the Regular Army is temporarily in abeyance. While serving under 
a different commission in some other army, he does not and can not 
function under his commission in the Regular Army. He is not, 
therefore, within the meaning of the statute, an officer' " holding a 
commission in the next lower grade " of his arm, staff corps, or de- 
partment, for, as just shown, he has ceased to function therein and is 
temporarily as much absent therefrom as though he really formed 
no part of such arm, staff corps, or department. The statute can 
properly be given full force and effect by construing the language 
just quoted to mean that promotions to temporary vacancies caused 
through the appointment of officers of the Regular Army to higher 
rank in forces other than the Regular Army shall be filled by tempo- 
rary promotions according to seniority of the officers who remain 
in the Regular Army and are, at the time of such vacancies, serving 
under their commission therein. Officers not serving under their 
commissions in the Regular Army would thus be temporarily passed 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 91 

over and, instead of being promoted temporarily to higher vacancies 
in their own arm, staff corps, or department, they would be left to 
serve under the higher commissions which they are temporarily hold- 
ing in some other army. Such is the clear intendment of the statute 
and such, I think, must have been the purpose of Congress in enact- 
ing it. 

6. It is impossible to foresee and discuss every contingency that 
ma} 7 arise in the administration of this law under the construction 
which I have just indicated will be the proper one to adopt; but it 
is believed that the difficulties under this plan will be few in com- 
parison with those that would inevitably arise under the alternative 
construction suggested and that none of those that do arise will 
prove to be insuperable. It may be proper, however, in addition to 
what has been stated, to refer to the matter of permanent promotions 
in the Regular Army. When an officer becomes entitled to a perma- 
nent promotion in the Regular Army he must, of course, accept the 
same. If he is serving as a colonel, let us say, in the National Army 
and becomes a permanent colonel in the Regular Army, he should 
ordinarily be continued in service in the National Army. This could 
involve no impairment of his rank, since his commission as a colonel 
in the National Army would antedate his commission as a permanent 
colonel in the Regular Army. If, however, an officer is serving as a 
temporary colonel in the Regular Army and is promoted to be a 
permanent colonel therein, it may well be that his commission as a 
permanent colonel will be subsequent to that held by other tempo- 
rary colonels who are his juniors in his arm, staff corps, or depart- 
ment. It is my view that the statute intended to protect officers of 
the Regular Army against a contingency of this kind when it pro- 
vided that they should not be " prejudiced in their relative or lineal 
standing in the Regular Army." I think it would be a fair construc- 
tion of this language to hold that Congress intended that no officer 
of the Regular Army, serving under a commission therein, shall be 
required to serve with lower rank than that held by a junior in his 
arm. staff corps, or department and who is also serving under a com- 
mission therein. This situation can be obviated by giving the officer 
who receives the permanent promotion a constructive date of rank 
as of the date of the temporary commission which he vacates to 
accept his permanent commission. This may be found necessary to 
maintain him in his proper relative or lineal standing in the Regular 
Army. Cases of this kind will, it is believed, be few in number and 
can be taken care of by administrative action without difficulty. 
This construction of the statute and the suggested administrative 
action thereunder would amply protect officers of the Regular Army 
in so far as Congress intended to extend protection, and would leave 
the question of relative rank as between officers serving under com- 
missions in some other army, where Congress. I think, intended to 
leave it to the fortunes of war and the incidents of service. 

7. It is. therefore, the opinion of this office that promotions to 
vacancies in the Regular Army caused by the appointment of officers 
thereof to higher grades in forces other than the Regular Army 
should be filled by promotion, according to seniority, of officers who, 
at the date of such vacancies are serving under commissions in the 
next lower grade of the arm, staff corps, or department in which the 
vacancies occur. 



92 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

OFFICERS: Effect of acceptance of commissions in one of the component 
forces of the Army of the United States upon a commission held in an- 
other force of said Army. 

[Memorandum for The Adjutant General.] 

August 30, 1917. 
64-311. 

Subject: Effect of acceptance of commissions in one of the component 
forces of the Army of the United States upon a commission held in 
another force of said Army. 

1. In your letter of August 22, 1917, you ask my opinion — 

" as to whether or not the acceptance of a commission in one of the 
armies of the United States operates to vacate a commission held in 
one of the other armies where such commission is not protected by 
statute, such as one held in the Regular Army." 

In the first place, it is pertinent to invite your attention to the fact 
that there is but one Army of the United States in the general sense — 
" the Army of the United States," which consists of the Regular Army, 
the Volunteer Army, the Officers' Reserve Corps, the Enlisted Reserve 
Corps, the National Guard drafted into the service of the United 
States, and the additional forces provided for in the National Army 
act (the National Army act of May 18, 1917, and sec. 1. national 
defense act). Whoever holds a commission in any of these component 
forces is an officer in the Army of the United States. 

2. The statutes expressly provide that officers of the Regular Army 
(which includes both active and retired officers) may accept commis- 
sions in the National Guard without vacating their commissions in 
the Regular Army (sec. 100, national defense act) , and all the volun- 
teer acts have carried, and do still carry, the same provision. See the 
volunteer act of 1898 (30 Stat. 360, 363) ; the volunteer act of March 
2, 1899 (30 Stat. 977, 980) ; section 1, act of May 28, 1898 (30 Stat. 
421) ; and the existing volunteer act of April 25, 1914 (38 Stat. 346, 
350). The present National Army act, which provides an additional 
force — the so-called National Army — supplanting the time-honored 
Volunteer Army, also provides that — 

" Officers appointed under the provisions of this act to higher grades 
in the forces, other than the Regular Army, herein provided for shall 
not vacate their permanent commission nor be prejudiced in their rela- 
tive or lineal standing in the Regular Army." 

Thus it is that Congress has gone to great pains to authorize the ap- 
pointment of Regular officers to the National Guard drafted into the 
Army of the United States, to the National Army, and to the Volun- 
teer Army whenever such there shall be, and to protect under such 
circumstances their Regular commissions. In my opinion, the protec- 
tion furnished ends with the statute ; and if an officer of the National 
Guard component, or the National Army, or of the Reserve Corps, ac- 
cepts a commission in any other component force, he thereby' vacates 
his former commission. 

3. In my judgment, one may not hold two offices in the same 
military establishment without specific legislative authority there- 
for. This may be regarded as inferentially established by the fact 
that Congress has deemed it necessary to protect the commission of 
an officer in the regular service when appointed to any other force 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 93 

in the Army of the United States. The incompatibility existing be- 
tween two offices in the same military establishment is obvious. It 
is settled that two offices are incompatible when a performance of the 
duties of the other or when the holding of two is contrary to the 
policy of the law. Crosthwaite v. U. S. (30 Ct. Cls. 300 f 22- Ops. 
Atty.. Gen. 237: 20 Ops. Atty. Gen. 427) ; Webster v. U. <S. (28 Ct. 
Cls. 25) : Graham v. U. S. (29 Ct. Cls. 404). Obviously, an officer 
of the National Army, for instance, may not perform the duties of 
an officer of the National Guard, or of a reserve officer, and his 
own as well ; and the same is true of the officers of the several forces. 
For example, a reserve officer has his functions established by law. 
As such he may be used for certain specified purposes. Obviously, 
he can not perform the functions which inhere in his office as a re- 
serve officer and at the same time those which inhere in office in any 
of the other forces. Nor, with regard to his inactive status, can it 
be said that he stands available so to be used in both capacities. Any 
other view would result not only in grave inconsistencies, but posi- 
tive injury to the military service. Holding dual or multiple com- 
missions in the same establishment can but frustrate the patent policy 
of the law. 

4. General principles point the way to this conclusion, and while 
the precedents are few they lead in the same direction. It has been 
held by the Attorney General that the office of colonel is inconsistent 
with that of major in the Army (20 Ops. 428). And so it has been 
held of an engineer and a paymaster in the Navy (Webster v. U. S., 
supra) and of an assistant medical referee in the Pension Bureau and 
an examining surgeon (Graham v. U. S., supra). In Webster v. 
U. aS.. supra, the court seemed to rest its reason for its holding of 
incompatibility upon the statement that they were " two offices in 
the same service." 

It is certain also that one holding both commissions would not re- 
ceive the pav of both offices, and this in itself is an evidence of 
incompatibility (20 Ops. Atty. Gen. 428). 

5. It is my opinion, therefore, except in so far as the statute gives 
express protection, an officer in one of the component forces of the 
Army of the United States may not hold a commission in another 
such component, and that if he be appointed to any such second office 
he thereby vacates his former commission. 



DECISIONS OF COMPTROLLER. 

PAY AND ALLOWANCES I, B 6 : Computing service for longevity pay. 

Commissioned officers of the Regular Army who have had State 
(not Federal) service in the militia or National Guard are not en- 
titled to count such service in the computation of their longevity 
pay. Officers of the National Guard drafted into the military service 
of the United States under section 111 of the national defense act of 
June 3. 1916, are entitled to have counted all legal service which 
they have had in the Organized Militia or National Guard and in 
the Army and Navy, if any, in computing their longevity pay. 

Opinion of Nov. 19, 1917. 



94 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

PAY AND ALLOWANCES II, A 3: Travel allowance of Regular Army- 
reservist on discharge. 

Upon the discharge of an enlisted man of the Regular Army 
Reserve, recalled to active service, he is entitled to travel allowance 
from the place of his discharge to his home ; that is, to the place from 
which he was furnished transportation when called to active duty. 

Opinion of Nov; 16, 1917. affirming opinion of J. A. G. 



NOTES ON THE ADMINISTRATION OF MILITARY JUSTICE. 

AMENDMENT OF RECORD. 

The reviewing authority in a recent case returned for correction 
attempted to amend the record by attaching thereto certificates of 
the president of the court and the trial judge advocate to the effect 
that the members of the court and the judge advocate were sworn. 

In another case, returned for correction, the president of the court 
interlined and initialed a statement to the effect that the accused was 
asked if he objected to any other member of the court, to which he 
replied in the negative. 

Proper correction of both of the errors referred to was essen- 
tial to the validity of the proceedings. It has been decided in 
a number of cases that amendments " can only be made by the court 
when duly reconvened for the purpose, and when made must be the 
act of the court as such." (Dig. Ops. J. A. G. 1912, 523.) Paragraph 
364 of the Manual for Courts-Martial, 1917, plainly describes the 
method of correcting clerical and other errors in court-martial 
records, and failure to comply therewith unnecessarily increases the 
work of this office as well as the expense of administering military 

COMMENT UPON EVIDENCE IN OPEN COURT BY MEMBER OF 
COURT. 

After the trial judge advocate had concluded his remarks and just 
before the court was closed for findings in the trial of a soldier 
charged with desertion and found guilty of absence without leave, 
the president of the court made the following statement: 

" To my mind it is an aggravated case of overindulgence in whisky 
in a young man whose future, I fear, is very black." 

This irregularity was of such a grave nature that had not the ac- 
cused freely admitted his absence without leave on the witness stand 
the finding and sentence of the court must have been set aside. The 
president of the court, or any member thereof, has no right to com- 
ment in open court upon the evidence adduced at the trial. 

PROCEEDINGS IN REVISION — CONSTITUTION OF COURT. 

In a recent case it was necessary for the reviewing authority to re- 
turn the record of trial of a soldier convicted of larceny to the court, 
with directions to reconvene and correct certain errors therein, which 
was done. Upon examination of the record in the office of the Judge 
Advocate General it was found that the proceedings in revision were 
invalid, for the reason that a member of the court absent at the trial 
participated therein. The record was returned to the reviewing au- 
thority, who then issued an order setting the sentence aside as being 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 95 

invalid. No reason is apparent for not again reconvening the court 
in order that it might correct the record in proper proceedings in re- 
vision. By this action of the reviewing authority the trial was ren- 
dered ineffectual and a soldier convicted of a crime involving moral 
turpitude unnecessarily escaped merited punishment. 

PUNISHMENT FOR VIOLATION OF LIQUOR REGULATIONS. 

In a recent case, in addition to being convicted of desertion in time 
of peace, a soldier pleaded guilty to selling liquor to another soldier 
in uniform, in violation of section 12 of the act of May 18, 1917. The 
court imposed a sentence of dishonorable discharge, total forfeitures, 
and confinement at hard labor for 18 months, which was approved by 
the reviewing authority, and which was adequate punishment only 
for the crime of desertion. The court apparently ignored the gravity 
of the offense of selling liquor to a soldier and failed to punish prop- 
erly a self-confessed bootlegger. Any person who now furnishes 
liquor to a soldier impairs the military forces of the United States 
at a time of national emergency, when the country is straining every 
nerve to build up and increase the efficiency of its Army. Drastic 
punishment should be meted out in no uncertain manner to this class 
of offenders. 

TESTIMONY OF MEMBER OF COURT. 

During the trial of a recent case a member of the court, without 
being excused as such, testified as a witness upon request of and 
ostensibly, as stated by the president thereof, " for the benefit " of 
the court, his testimony being adverse to the interests of the accused. 
In practical effect he was a witness for the prosecution, and, in view 
of the provisions of the eighth article of war, the Judge Advocate 
General held that his action in testifying and thereafter participat- 
ing in the proceedings of the court rendered the findings and sentence 
invalid. 

COURT DECISIONS. 

EVIDENCE : Federal price list. 

The State of Washington sued a militia captain and his bondsmen 
on account of his failure to account for certain military equipment 
received prior to 1913. The defense was a general denial and an 
affirmative plea that defendant had demanded a board of survey to 
inquire into the alleged shortage, which demand had been arbitrarily 
refused. At the trial the only evidence offered as to the value of the 
equipment was the Federal price list of equipment and supplies re- 
vised February 1, 1913. Held, that plaintiff was properly nonsuited, 
for the 1913 price list was no evidence of the value of the goods 
received long prior to 1913, and consequently no verdict for more 
than nominal damages could have been returned. 

State v. Buckley, 167 Pac, 1087, Supreme Court of Washington. 

JURISDICTION OF CIVIL AND MILITARY COURTS. 

On July 11, 1917, a member of the National Guard, who had prior 
to that time been mustered and SAvorn into the service of the United 
States, shot and killed a policeman in the city of Newport, Ky. He 
was arrested by a sergeant of his company,' was committed by the 



96 L'IGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

county judge upon an examination, and was indicted by the grand 
jury on the charge of murder. His commanding officer filed a peti- 
tion of habeas corpus praying that the prisoner be delivered to the 
military authorities for trial by a court-martial on the charges pre- 
ferred against him. The court held, that while the civil courts have 
priority of jurisdiction over capital crimes committed by soldiers in 
time of peace, the military authorities in time of war, having con- 
current, jurisdiction with the civil authorities for crimes committed 
in a loyal State, have the prior right. After reviewing the author! 
ties. Judge Cochran said : 

" It is clear, therefore, that under the Articles of War the civil 
authorities in time of war have no right to withhold a soldier accused 
of a crime from the military authorities or to demand him from them 
in order to try him for an offense against the criminal laws of the 
land." 

He held also that in this case the military authorities had not waived 
any of their rights by the sergeant's act of delivering the prisoner to 
the county jail. 

In re King, United States District Court, Eastern District of Ohio. 
Case and Comment for November, 1917, p. 495. 

SELECTIVE DRAFT ACT: Interpretation, nondeclarant aliens. 

Relator was brought before the court on a writ of habeas corpus. 
He was a citizen of Russia, had never declared his intention of be- 
coming a citizen of the United States, was drafted for military serv- 
ice and ordered to report, and was arrested by the military authori- 
ties for not reporting. He received the usual notices ; he never made 
any claim for exemption on ground of alienage in the manner pre- 
scribed by the regulations. He alleged that he had made certain in- 
formal claims and failed to make formal claim by reason of assur- 
ances given him by members of the local board that, being an alien, 
he need not trouble himself further. This was denied by members of 
the local board. After the time for filing exemption claims had ex- 
pired he made formal claim. The court stated the question at issue 
to be this : 

" Is a person who failed to claim exemption on the ground that he 
was a nondeclarant alien, and who now asserts (without contradic- 
tion) that he is such an alien, properly in the custody of the military 
authorities ? " 

The question is answered in the affirmative on the ground that the 
relator was not denied a fair hearing and the local and district boards 
acted in strict accordance with the procedure laid down by the regu- 
lations. The following excerpt from the opinion is of special inter- 
est: 

" The remaining question is whether the local board wholly lacked 
jurisdiction. It is contended because nondeclarant aliens are ex- 
empted from the draft that no obligation was placed upon relator 
affirmatively to present his claim for exemption, and this is but 
another way of stating that by virtue of the act itself relator was auto- 
matically exempted. 

" It must be conceded at the outset that Congress had the power to 
subject all persons to the draft whether citizens or aliens. 

" The question, then, is whether from the structure of the act it 
was the intention of Congress that only those who claimed exemption 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 97 

should in proper cases be exempted, or whether those entitled to ex- 
emption could disregard the procedure provided for by the act and 
the regulations and show aliunde, as here, that they fell within one 
of the statutory exempt classes. 

" The whole plan of the act is undoubtedly to require that those 
who claim exemption shall affirmatively present their claim to the 
appropriate body so that that body can determine as a fact whether 
the person falls within the exempted classes. When, therefore, no 
such claim is presented and the proceedings of the local and the dis- 
trict boards are regular in every respect, the court can not go outside 
of the proceedings of the boards to determine independently some- 
thing which the act required should be determined by these boards." 

United States ex rel. Koopowitz v. Finley. United States District 
Court, Southern District of New York, Mayer, judge, Nov. 3, 1917. 

The petition alleged that petitioners were nondeclarant aliens and 
subjects of Italy, and by treaty not liable to military service here. 
There were no allegations that the draft boards had acted arbitrarily 
or had departed from the procedure prescribed by the draft regula- 
tions. Held, that the courts can not under the facts set forth in the 
petition interfere with the findings of the draft boards by resort to 
the writ of habeas corpus. 

United States ex rel. Troiani v. Heybum. United States District 
Court. Eastern District of Pennsylvania, Dickinson, judge, Sept. 
10, 1917. 

SELECTIVE DRAFT ACT : Interpretation, declarant aliens. 

The petitioner was a citizen of the Kingdom of Spain, who had 
filed his declaration of intention to become a citizen of the United 
States. He was arrested off the shore of Mexico by a United States 
war vessel and detained under process for evading the selective draft 
act. He made application for a writ of habeas corpus, claiming that 
when arrested he was on his way to Spain, and that he was not sub- 
ject to the draft act on account of the provisions of the treaty with 
Spain by which its citizens are exempt from compulsory military 
service in the United States forces. Held, that the petitioner was 
subject to draft; that the provisions of the draft act, when in conflict 
with prior treaty stipulations, prevail over them, and that the order 
to show cause why a writ of habeas corpus should not issue be dis- 
charged and the writ denied. 

In re Victor Lamtcea, United States District Court, Southern Dis- 
trict of California. Southern Division, Bledsoe, judge. 
151738—20 7 



BULLETIN 75. 

OPINIONS OF JUDGE ADVOCATE GENERAL. 

ABSENCE II, B : Expense of returning soldiers absent without leave. 

There is no general authority for payment of expenses incurred by- 
civil authorities for the arrest and return of soldiers absent without 
leave who are not deserters. In exceptional cases the Secretary of 
War may authorize the payment of such expenses from the appro- 
priation, " Contingencies of the Army." 

Ops. J. A. G. 242.42, Dec. 26, 1917. 

ARMY: Composition and organization: Office III, C; Assignment of re- 
serve officers. 

In time of actual or threatened hostilities the President may order 
officers of the Officers' Keserve Corps to temporary duty with the 
Kegular Army in grades that can not be filled by promotion, or to 
duty, permanent or temporary, in authorized positions in volunteer 
or other organizations, which include the National Guard drafted 
into the Federal service or the National Army. 

Ops. J. A. G. 210.33, Dec. 15, 1917. 

ARMY I: Composition and organization. 

Regiments of Cavalry organized provisionally as Field Artillery 
under the act of October 6, 1917 (Public, 89, 65th Cong. 1st sess.), 
cease for the time being to be Cavalry regiments. An officer of such 
a reorganized regiment should wear the insignia and sign his rank as 
of the regiments of Field Artillery in which he is serving. 

Ops. J. A. G. 421.7, Dec. 1, 1917. 

ARTICLES OF WAR LXIII : DISCIPLINE VIII : American Red Cross. 

American Red Cross officials serving with United States base hos- 
pitals in France are " persons accompanying or serving with the 
armies of the United States in the field " within the meaning of the 
Second Article of War, and are therefore subject to the military 
jurisdiction of the United States. The same is true of the personnel 
of American Red Cross hospitals in France which serve soldiers and 
civilians or which serve civilians only, provided that they have been 
recognized formally or informally by the Army of the United States. 

Ops. J. A. G. 250.4, Dec. 21, 29, 1917. 

ARTICLES OF WAR CVI, CVII: Construction of present forty-eighth 
article of war. 

Both the legislative history of the forty-eighth article and its un- 
ambiguous language require the interpretation that a sentence of 
dismissal of an officer below the grade of brigadier general may be 
carried into execution upon confirmation by the commanding gen- 
eral of the territorial department or of the territorial division. 

Ops. J. A. G. 210.81. Dec. 8, 1917. 

98 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 99 

ARTICLES OF WAR LXXXII, B: DISCIPLINE III; Power of command- 
ing officer of base hospital to convene special and summary courts- 
martial. 

The commanding officer of a base hospital is the commanding 
officer of a " place where troops are on duty " within the meaning 
of the ninth and tenth articles of war, and therefore has power to 
convene special and summary courts-martial. 

Ops. J. A. G. 250.42, Dec. 26, 1917. 

CIVIL AUTHORITIES I, B : Procedure where soldier is necessary witness 
in a civil proceeding'. 

There is no Federal law by virtue of which a continuance may be 
secured as of right in a proceeding before a civil court by reason of 
absence of a necessary witness in the military service. Depositions 
of such witness may be taken upon application to the commanding 
officer under whom he is serving where the circumstances are such 
that the military duties of the witness will not be interfered with. 
The taking of depositions of men serving in the expeditionary forces 
abroad ought not to be permitted. 

Ops. J. A. G. 013.26, Dec. 18, 1917. 

COMMUNICATIONS II: Franking privilege for applications for family 
allowances and insurance. 

In forwarding applications for family allowances and for insur- 
ance, officers may use penalty envelopes; but these may not be regis- 
tered without payment of the registration fee. 

Ops. J. A. G. 311.17, Dec. 21, 1917. 

DESERTION V, B, C : Amount of reward for delivery at place other than 
nearest military post. 

Where a deserter is delivered to the military authorities at a place 
other than the nearest military post, as, for example, to the local 
draft board or to a detachment or guard sent to receive him, the 
person so delivering him is entitled to a reward of $50 less the esti- 
mated cost of delivering him to the nearest Army camp or post. 

Ops. J. A. G. 251.211, Dec. 4, 7, 1917. 

DISCHARGE XX: Discharge of National Guard officers. 

An efficiency board convened pursuant to section 77 of the national 
defense act completed its action prior to August 5, 1917, recommend- 
ing the discharge of certain officers of the Illinois National Guard, 
but no order was issued thereon until after the draft of said officers 
on August 5, 1917. 

Held, That no valid order could be issued thereon, and that said 
officers may be discharged from service only under section 9 of the 
selective draft act. The discharge may be made by the President 
for any cause which, in his judgment, would promote the public 
service; or it may be made by the President after determination by 
a board of officers that the officers in question are unfit. 

Ops. J. A. G. 210.81, Dec. 12, 1917. 

DISCIPLINE XIV, C: Construction of paragraph 376, M. C. M., 1917. 

Under paragraph 376 of the Manual for Courts-Martial, 1917, the 
reviewing authority is not required to write out in his own hand the 



100 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

order of approval, disapproval, or other action taken upon proceed- 
ings of courts-martial. It is sufficient if he signs such action with 
his own hand. 

Ops. J. A. G. 250.42, Dec. 20. 1917. 

DISCIPLINE VIII, G: Jurisdiction of courts-martial as to offenses com- 
mitted prior to enlistment. 

Cases arising under the eighty-first article of war (relieving, corre- 
sponding with, or aiding the enemy) or under the eighty-second 
article of , war (spies) may be tried by courts-martial regardless of 
whether the offenders were subject to military law at the time the 
offenses were committed. And under the fifty-fourth article of war 
a soldier may be tried for fraudulent enlistment, though the act was 
committed prior to his induction into the military service. But in 
the absence of statute the general rule applies that a court-martial 
has no jurisdiction of an offense committed prior to the entry of the 
offender into the military service. 

Ops. J. A. G. 250.4, Dec. 20, 1917. 

DISCIPLINE VIII, G: Jurisdiction of courts-martial over prisoners of 

war. 

General courts-martial have jurisdiction to try prisoners of war for 
military offenses and for offenses of a civil nature. It is inadvisable 
under the provisions of the present Manual for Courts-Martial (see 
par. 3(a)) to resort to a provost court or to a military commission 
in such cases. 

Ops. J. A. G. 383.6, Dec. 27, 1917. 

DISCIPLINE XII, B, 3 e: Sentence of forfeiture of pay — Effect upon 
allotments. 

That portion of pay required to be allotted by the provisions of 
Article II of the war risk insurance act of October 6, 1917, is not 
subject to forfeiture by sentence of a court-martial, but any portion 
voluntarily allotted is subject to such forfeiture. A sentence impos- 
ing forfeiture of a part of pay means forfeiture of the specified part 
of that portion of pay not covered by compulsory allotment. 

Ops. J. A. G. 243, Dec. 17, 1917. 

ENLISTMENT I, A, 3, 8, B : Persons authorized to take enlistments. 

An enlistment is accomplished by executing the contract of enlist- 
ment and taking the oath of allegiance; but this can be done only 
when authorized by some person acting for the Government of the 
United States. Otherwise any person authorized to administer an 
oath might accept recruits and bind the Government. But where 
a person not regularly enlisted has been treated and recognized as an 
enlisted man by the Government, he may be properly enlisted and his 
enlistment dated back. 

Ops. J. A. G. 342, Dec. 15, 1917. 

ENLISTED RESERVE CORPS : Call to service. 

A member of the Enlisted Reserve Corps who is unconscious at the 
time of receipt of call to active duty and remains unconscious there- 
after till death is never brought into the military service. 

Ops. J. A. G. 220.46, Dec. 5, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 101 

GOVERNMENT AGENCIES III: Distribution of company funds of dis- 
banded organizations. 

Where an organization's post exchange accumulated a fund which 
was not distributed pro rata among its members upon the disbanding 
of the organization, and its former members are no longer in the serv- 
ice as enlisted men but are in the service as officers, the fund should 
be covered into the United States Treasury as "Miscellaneous re- 
ceipts," for officers are not entitled to participate in the benefits of a 
companv fund. 

Ops. J. A. G. 123.01, Dec. 22, 1917. 

GOVERNMENT AGENCIES III: Distribution of company fund upon re- 
organization. 

Where upon reorganization of a company a percentage of the en- 
listed men thereof are transferred to another organization, a pro rata 
share of the company fund should be transferred to the organization 
to which they are transferred. 

Ops. J. A. G. 123.7, Dec. 20, 1917. 

GOVERNMENT AGENCIES II : Liability of post exchange to war-revenue 
tax. 

Tobacco sold by a post exchange is subject to the war-revenue tax 
imposed by section 403 of the act of October 3, 1917 (Public, No. 50, 
65th Cong.). 

Ops. J. A. G. 012.23, Dec. 6, 1917. 

OFFICE III, A, B : Appointments and promotions in Porto Rico regi- 
ments. 

The Porto Eico Regiment of Infantry is a component part of the 
Regular Army. Consequently, temporary vacancies therein resulting 
from the appointment of officers to higher grades in the forces other 
than the Regular Army are to be filled, as provided by section 8 of the 
act of May 18, 1917, bv temporary promotions and appointments 
according to seniority in rank of officers holding commissions in the 
next lower grade in said regiment. 

Ops. J. A. G. 322.81, Dec. 1, 1917. 

OFFICE IV, E, 2: Dismissal of provisional officers. 

Under section 1 of the selective draft act the President is given 
power to terminate provisional appointments whenever it is deter- 
mined that the officer is unfit for permanent appointment. G.*0. 76, 
W. D., June 26, 1917, lays down the rules prescribed by the President 
for determining the fitness of such officers. The procedure therein 
prescribed must be followed. 

Ops. J. A. G. 210.81, Dec. 1, 1917. 

OFFICE IV, A, I: Effect of acceptance of commission in Officers' Reserve 
Corps by drafted National Guard officer. 

An officer of the National Guard of a State was drafted and thus 
became an officer in the National Guard component of the Army of 
the United States. Thereafter he accepted a commission in the 
Officers' Reserve Corps. 

Held, that he thereby vacated his commission in the National 
Guard component of the Army. 

Ops. J. A. G. 324.24, Dec. 29, 1917. 



102 DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF ARMY. 

OFFICE III, A, B : Qualifications for appointment and promotion in Medi- 
cal and Dental Corps. 

The act of October 6, 1917, repeals section 10 of the act of June 3, 
1916, in so far as it requires 24 years' service as a qualification for 
major in the Dental Corps and limits the number of majors to 15. 
The same act makes first lieutenants in the Medical Corps of the 
Regular Army and National Guard eligible to promotion as captains 
upon examination prescribed by the Secretary of War. The Secre- 
tary need not act in the premises unless he so desires. 

Ops. J. A. G. 321.6, Dec. 5, 1917. 

OFFICE III, A, B: Temporary promotions in Regular Army. 

The term "temporary promotion," as used in the National Army 
act of May 18, 1917, and in section 114, national defense act of June 
3, 1916, contemplates promotion as ordinarily understood in military 
legislation. Temporary promotion by seniority contemplates that 
the appointing power shall be satisfied that the officer about to be 
promoted is qualified. No officer is entitled to promotion regardless of 
his qualifications. Failure of an officer to discharge the duties of a 
higher grade in the National Army may and should be regarded 
by the President as satisfactory evidence of his disqualification to 
perform the duties of the same grade in the Regular Army. It is 
within the power of the War Department to prescribe how long an 
officer who has demonstrated his disqualification for higher command 
in the National Army shall remain ineligible for temporary promo- 
tion in the Regular Army and upon what conditions he shall become 
eligible for such promotion. 

Ops. J. A. G. 210.33, Nov. 27, 1917. 

OFFICE III, C: Transfer of officer to another component. 

All officers, except those of the Regular Army and those of the 
Officers' Reserve Corps, whether they have been commissioned in the 
so-called National Guard component or in the additional force called 
the National Army, have similar status and obligations and are trans- 
ferable from one component to another. Regular Army officers, how- 
ever, may not be transferred to the other forces, but they may be 
appointed thereto in the manner prescribed by statute and not other- 
wise. Officers of the other forces can not become officers of the Regu- 
lar Army except by original appointment as the statute prescribes. 
Officers of the Reserve Corps have a fixed, limited tenure of office and 
a specified use. These incidents prevent homogeneity with the other 
forces. Consequently, a National Guard officer can not be trans- 
ferred to the Officers' Reserve Corps without a prior return to a 
civilian status. 

Ops. J. A. G. 210.33, Nov. 27, 1917. 

OFFICE IV, A, 1 a: Vacation of office by accepting other office. 

An acceptance of a Regular Army commission, whether perma- 
nent or temporary, in a lower grade than that held by an officer of 
the Regular Army in the temporary forces does not affect the status 
of the officer in the temporary forces, for the act of May 18, 1917, 
provides that officers of the Regular Army appointed to higher 
grades in such temporary forces shall not vacate their permanent 



DIGEST OP OPINION'S JUDGE ADVOCATE GENERAL OF ARMY. 103 

commissions nor be prejudiced in their relative or lineal standing in 
the Regular Army. 

Ops. J. A. G. 210.142, Dec. 12, 1917. 

PAY AND ALLOWANCES I, C, 5: Computing prior service of member of 
Nurse Corps (female). 

A member of the Reserve Nurse Corps called to active duty on 
June 18, 1917, had theretofore had service in the Army Nurse Corps 
and Navy Nurse Corps, so that her total period of service amounted 
to about three years and four months. 

Held, that she was entitled to have all prior service in both Army 
and Navy counted in computing her pay under the act of March 23, 
1910 (sec. 1832, U. S. Comp. St. 1916) "and was entitled to be paid 
as of the second period of three years' service. 

Ops. J. A. G. 322.31, Dec. 13, i917. 

PAY AND ALLOWANCES II: Heat, light, and quarters for Army field 
clerks. 

Army field clerks who have not had 12 years' service, so as to come 
within the provisions of the act of August 29, 1916 (39 Stat. 625), 
are not entitled to have quarters rented for them or to be paid com- 
mutation for heat and light on the same basis as a second lieutenant. 

Ops. J. A. G. 245.8, Dec. 18. 1917. 

PAY AND ALLOWANCES I, B, 6: Longevity pay — Prior service in Na- 
tional Guard. 

An officer of the National Army or of the Reserve Corps can not 
count prior service in the National Guard in computing service for 
longevity pay. Such service may be so counted only by officers draft- 
ed as National Guard officers, and only so long as they continue in 
service under the draft. 

Ops. J. A. G. 241.12, Dec. 17, 1917. 

PAY AND ALLOWANCES I, C: Pay of enlisted men of the Philippine 
Scouts. 

Enlisted men of the Philippine Scouts are not entitled to the in- 
creases of pay authorized by section 10 of the selective-draft act of 
May 18, 1917. Their rates of pay are fixed by the Secretary of War 
under authority of section 36, act of February 2, 1901 (31 Stat. 757). 

Ops. J. A. G. 322.82, Dec, 13, 1917. 

PAY AND ALLOWANCES I, B : Pay of flying cadet. 

A flying cadet who has been commissioned and is awaiting orders 
for service over seas, but who is not under duty to make aerial flights 
while awaiting such orders, is not entitled to flying pay. 

Ops. J. A. G. 241.1, Dec. 10, 1917. 

PAY AND ALLOWANCES II, A, 2 a (3) : Transportation of baggage. 

During the present emergency an officer ordered to duty in the field 
is entitled to have his authorized allowance of baggage snipped from 
his last permanent station to any place to which the cost of transport- 
ing same does not exceed the cost of transporting it to the place to 
which he is ordered. But when he has once received such allowance 
he is not entitled to another such allowance, even though he is there- 
after ordered to field dutv in another place. 

Ops. J. A. G. 524.21, Dec. 3, 1917. 



104 DIGEST OF OPINIONS JUDGE ADVOCATE GENEKAL OF ARMY. 

PUBLIC MONEY I, M: Money received from sale of garbage. 

Since the United States has arranged for the collection and disposal 
of garbage from military camps, it can no longer be regarded as 
abandoned property. Money received from its sale must, therefore, 
be deposited in the United States Treasury. The opinion of January 
11, 1912 (C 23876), is no longer applicable, 

Ops. J. A. G. 131.1, Dec. 3, 1917. 

RETIREMENT II: Rank on retirement. 

An enlisted man after 30 years' service is eligible for retirement 
under existing laws with the noncommissioned rank which he then 
holds, whether in the Regular Army or in the other forces of the Army 
of the United States. 

Ops. J. A. G. 220.85, Dec. 10, 1917. 

RETIREMENT I, B, 5: Retirement of drafted National Guard officer. 

Under section 112 of the national defense act of June 3, 1916, 
officers of the National Guard drafted into the service of the United 
States are entitled to the benefits of the pension laws. By section 2 
of the selective draft act of May 18, 1917, the laws and regulations 
governing the Regular Army, except as to promotions, apply to such 
officers so drafted in so far as such laws and regulations are ap- 
plicable to persons whose permanent retention in the military service 
is not contemplated by existing law. It is not contemplated that 
officers drafted into the service are to be permanently retained 
therein. Therefore the laws governing retirement do not apply to 
them, but the pension laws do applv. 

Ops. J. A. G. 210.85, Dec. 19, 191*7. 

RETIREMENT II, A: Service to be counted by enlisted man. 

An enlisted man of the Regular Army who has been transferred 
to one of the other component forces of the Army of the United 
States may, if he has had 30 years' service, be retired while serving 
with the forces to which he has been transferred, and in computing 
the period of his service he is entitled to count all service in any 
branch of the armed forces of the United States. 

Ops. J. A. G. 220.85, Dec. 4, 1917. 

SELECTIVE-DRAFT ACT : Drafted minors. 

Where a registrant is certified by the district board for military 
service as being within the draft age, he can not be discharged from 
the military status thus imposed upon him either upon his own ap- 
plication or upon application of his parent or guardian upon the 
ground that he is not in fact of draft age. In the absence of fraud 
the decision of the board so certifving is final. 

Ops. J. A. G. 324.71, Dec. 27, 1917. 

SELECTIVE DRAFT ACT: Official authorized to make affidavit to secure 
deferred classification of employee. 

The rules and regulations prescribed by the President under date 
of June 30, 1917, permit the commander or officer having command, 
the collector or his deputy, a person having direct supervision of 
persons employed by the United States, or any official of the Govern- 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 105 

ment of the United States having direct supervision and control of 
the department, commission, board, bureau, division, or branch of 
the Government in which the person seeking deferred classification is 
employed, to execute the affidavit supporting the claim for deferred 
classification. An assistant engineer in charge of a river and harbor 
district is an official of the Government of the United States author- 
ized to make such affidavit. 

Ops. J. A. G. 013.14, Dec. 24, 1917. 

TAX IV: War-revenue tax on motor vehicles. 

The war-revenue act of October 3, 1917, imposes a tax upon all 
automobiles, etc., sold by the manufacturer, producer, or importer, 
which is required to be paid by said manufacturer, producer, or im- 
porter. There is no authority of law under which motor vehicles pur- 
chased by the United States may be exempted from the tax in order 
that the purchase price may be correspondingly reduced to the Gov- 
ernment. 

Ops. J. A. G. 012.23, Dec. 21, 1917. 



DECISIONS OF COMPTROLLER OF THE TREASURY. 

PROMOTIONS TO VACANCIES IN REGULAR ARMY CAUSED BY AP- 
POINTMENTS IN NATIONAL ARMY. 

Paragraph 1260 of the Army Regulations provides: 

"A person appointed to the Army, or receiving an appointment 
to a new office therein, is entitled to pay from the date of acceptance 
only. If the appointment creates vacancies to be filled by promotion, 
the promoted officers are entitled to pay of the new grade from the 
date of acceptance of the appointee. In all other cases of promotion 
the officer is entitled to pay from the date of the occurrence of the 
vacancy." 

The appointment of an officer of the Regular Army to a command 
in an organization composed of members taken from the National 
Guard would be to a new office within the meaning of said regula- 
tion. It therefore follows that the date when the appointment is 
accepted, or, in other words, the " date of acceptance of the ap- 
pointee," is the date from which officers of the Regular Army tem- 
porarily-promoted under section 114 of the national-defense act as 
a consequence of said appointment will be entitled to pay of the 
grade to which they are promoted. 

Taking the oath of office after an appointment, or after confirma- 
tion, when that is necessary, constitutes an acceptance of the ap- 
pointment. An acceptance may also be implied by entering upon the 
discharge of the duties of the office after appointment, or after con- 
firmation, when that is necessary, before taking the oath. (See 4 
Comp. Dec. 496.) 

Comp. of Treas. Nov. 26, 1917. 



106 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

DECISIONS OF THE DIRECTOR OF THE BUREAU OF WAR-RISK 

INSURANCE. 

PERSONS ENTITLED TO WAR-RISK INSURANCE, AND OTHER BENE- 
FITS OF THE ACT OF OCTOBER 6, 1917. 

(1) Field clerks, Quartermaster Corps. — Field clerks, Quarter- 
master Corps, are within the terms of the act as enlisted men. 

(2) Army field clerks. — Army field clerks have the same military 
status as field clerks, Quartermaster Corps, and are within the terms 
of the act as enlisted men. 

(3) Members of training camps. — Members of training camps au- 
thorized by law are within the terms of the act. 

(4) Students in aviation camps. — Students in aviation camps who 
are enlisted men are within the terms of the act. 

(5) Medical officers, Public Health Service. — Officers of the Pub- 
lic Health Service when detailed for duty with the Army or Navy 
are within the terms of the act as officers in the active service of the 
United States. (See T. D. 8, W. R. (8), as to "contract surgeons.") 

(6) Male nurses, enlisted. — Male nurses who are enlisted men of 
the Medical Department are within the terms of the act. (But see 
T. D. 8, W. R. (9), as to civilians employed as " contract nurses.") 

(7) Retired officers or men ordered to active duty. — Officers and 
men on the retired list who are ordered to active duty by the War 
Department or Navy Department are in active service and are 
within the terms of the act. 

(8) Personnel of Lighthouse Service. — The personnel of the Light- 
house Service, transferred to the service and jurisdiction of the War 
and Navy Departments by Executive order pursuant to the act of 
August 29, 1916, are within the terms of the act of October 6, 1917. 

PERSONS NOT ENTITLED TO THE BENEFITS OF THE ACT OF OCTO- 
BER 6, 1917. 

(1) Cadets at West Point and midshipmen at Annapolis. — Cadets 
at West Point and midshipmen at Annapolis who are not assigned 
to active service are not within the terms of the act. 

(2) Cadets and cadet engineers, Coast Guard. — Cadets at the 
Coast Guard Academy and cadet engineers in the Coast Guard who 
are not assigned to active service are not within the terms of the act. 

(3) Russian Railway Service Corps. — Men in the Russian Rail- 
way Service Corps are not within the terms of the act. 

(4) Draftsmen in Engineer Corps. — Draftsmen in the Engineer 
Corps are civilian employees in the Military Establishment obtained 
by the department through the civil service and are not within the 
terms of the act. 

(5) Field clerks, Engineer Corps. — The so-called field clerks in the 
Engineer Corps are civilian employees who have no military status. 
They are not within the terms of the act. 

(6) Civilian field clerks, Signal Corps. — Civilian field clerks, Sig- 
nal Corps, are civilian employees in the Military Establishment and 
are not within the terms of the act. 

(7) Postal agents serving in France. — Postal agents sent to France 
by the Post Office Department to handle field mail for the troops are 
civilian employees and are not within the terms of the act. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 107 

(8) Contract surgeons. — Contract surgeons are civilians under em- 
ployment by the United States by contract for their personal services 
as medical attendants to the troops and are not within the terms of 
the act. (See T. D. 7, W. R. (5) , as to medical officers, Public Health 
Service.) 

(9) Contract nurses. — Civilians employed as "contract nurses" in 
the Army or Navy are not within the terms of the act. (But see 
T. D. 7, W. R. (6), as to enlisted male nurses.) 

33 Treas. Dec. 65-67, T. D. 7, W. R. T. D. 8, W. R. Dec. 12, 1917. 



NOTES ON MILITARY JUSTICE. 
CONDUCT DISGRACEFUL TO THE SERVICE. 

An officer of the Regular Army was recently brought to trial for 
being drunk at a military hop, the charge being laid under the ninety- 
sixth article of war. He pleaded guilty, was so found by the court, 
and sentenced to be reprimanded and reduced in rank 25 files. In 
administering the reprimand the reviewing authority remarked that 
the accused had been tried three times for drunkenness during a 
preceding period of less than eight months. The following comment 
with reference to the charge preferred in this case and to the punish- 
ment imposed appeared in the Acting Judge Advocate General's 
review of the case : 

" This record indicates that, prior to this trial, the accused had 
been tried three times for drunkenness within the preceding eight 
months. This fact must have been known to his superior officers, and 
particularly to those who are responsible for the charges in this case. 
Under these circumstances, to charge the accused with violation of 
the ninety-sixth rather than with violation of the ninety-fifth article 
of war comes very near being an official condonation of his offense 
prior to trial, and an invitation to the court to award a sentence less 
than dismissal from the service * * *. The sentence awarded by 
the court in this case does violence to the sense of military justice 
which should prevail in the service. The accused was drunk in uni- 
form at a hop, * * * which was largely attended by members of 
the service as well as by some civilians. He should have been charged 
with conduct unbecoming an officer and a gentleman, upon a convic- 
tion of which dismissal would have been mandatory." 

Dismissal of the accused from the service under the one hundred 
and eighteenth article of war was recommended. During the trial 
of this case a captain, called as a witness for the prosecution, testi- 
fied, in part, as follows: 

" Q. Well, how could his conduct have been disgraceful to himself 
while he was in uniform and not be disgraceful to the service? 

"A. That's a question, I think, sir, that depends on the viewpoint 
of each individual. I do not feel that at a hop of that nature that a 
man who is drunk to the extent that (the accused) was degrades the 
service in the minds of anyone who is there. I base this assumption 
on the fact that other officers have, to my knowledge, been drunk at 
transport hops, and I have never heard anyone say that they felt 
the service has been discredited in any way, and no action had been 
taken against them. Had many civilians been present and, to my 



108 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 

knowledge, have seen (the accused), then the service might have 
been discredited; but without a knowledge of the feelings of those 
civilians, I am unable to state positively that in their minds discredit 
was brought. That question was brought up at the time, to my 
knowledge, of the drawing of these charges and because of the fact 
that the officers concerned in the preparation of the charges did not 
know the minds of such civilians as were present, a statement to the 
effect that it was a disgrace to the service was purposely left out." 

In commenting upon this testimony, the Acting Judge Advocate 
General used the following language : 

" The view expressed by (the witness) is highly discreditable to the 
service to which he belongs. It implies, to some extent at least, that 
the service can not be discredited in its own eyes, and that the conduct 
of an officer in uniform, unless witnessed and considered discreditable 
by civilians, should not generally be regarded as discrediting the 
service. Views such as this should not be allowed to go unchallenged. 
The service should hold its own standards in such high esteem that 
outside opinions should not be necessary in determining what conduct 
shall be regarded as a violation of or departure from such standards." 

PROCEDURE ON REVISION : Constitution of court. 

In a recent case it was necessary for the reviewing authority to 
return the record of trial of a soldier convicted of larceny to the court 
with directions to reconvene and correct certain errors therein, which 
was done. Upon examination of the record in the office of the Judge 
Advocate General it was found that the proceedings in revision were 
invalid for the reason that a member of the court absent at the trial 
participated therein. The record was returned to the reviewing 
authority, who then issued an order setting the sentence aside as being 
invalid. No reason is apparent for not again reconvening the court 
in order that it might correct the record in proper proceedings in 
revision. By this action of the reviewing authority the trial was 
rendered ineffectual, and a soldier convicted of a crime involving 
moral turpitude unnecessarily escaped merited punishment. 

PROCEDURE ON REVISION: Taking of new evidence. 

A soldier was recently found not guilty by the court of sleeping on 
post in time of war. The reviewing authority returned the record of 
trial to the court with directions to reconvene and reconsider its find- 
ings, expessing the view that the evidence of record clearly established 
the guilt of the accused. The court thereupon reconvened, called 
another witness, and proceeded to take additional testimony in the 
case, at the conclusion of which it found the accused guilty and im- 
posed a sentence. The reviewing authority very properly disapproved 
the proceedings, findings, and sentence, with the appropriate comment 
that " this introduction of new evidence after the case was closed was 
most improper and illegal." 

REVIEWING AUTHORITY : Power of disapproval. 

In the case of a soldier tried and convicted on October 22, 1917, of 
desertion in time of war, the reviewing authority returned the record 
of trial to the court with the comment that "the record * * * 
wholly fails to show an intent on the part of " the accused " to desert 
* * * and no facts appear therein from which such intent can be 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 109 

presumed. The court will therefore reconvene for further considera- 
tion of the case." In compliance with such instructions, the court 
reconvened November 16, 1917, revoked its former sentence, and im- 
posed a new one, but did not alter its findings. 

The forty-seventh article of war expressly empowers the reviewing 
authority to " approve or disapprove a finding, and to approve only 
so much of a finding of guilty of a particular offense as involves a 
finding of guilty of a lesser included offense when-" in his opinion, 
" the evidence of record requires a finding of only the lesser degree of 
guilt, and * * * to approve or disapprove the whole or any part 
of the sentence. 

The reviewing authority had ample power, and it was his duty, to 
act upon the findings and sentence in accordance with his view of the 
evidence. By his action in this case he not only permitted a finding 
of guilty of desertion in time of war not sustained by the evidence to 
stand, but he prolonged the confinement of the accused practically a 
month. 

REVIEWING AUTHORITY: Procedure where sentence is improper in 
form. 

In the case of a soldier recently convicted of disrespect toward a 
commissioned officer, willful destruction of private property, and as- 
sault with intent to do bodilv harm, the record of trial was returned 
by the Judge Advocate General to the reviewing authority for fur- 
ther action, for the reason that proceedings in revision for the correc- 
tion of a sentence improper in form but legally sufficient were invalid. 
Instead of reconvening the court, to which no legal or other objection 
is apparent, or giving vitality to the original sentence by proper 
action thereon, the reviewing authority issued an order declaring the 
sentence null and void and ordering the accused released from con- 
finement and restored to active duty with his company. By this 
action a soldier properly convicted of three very serious offenses com- 
mitted in time of war escaped practically all punishment therefor. 
SENTENCE FOR BUCCAL COITUS: Confinement in penitentiary. 

The reviewing officer in two recent cases cited a Vermont statute 
as authority for" confinement in the penitentiary of two soldiers con- 
victed of buccal coitus. The forty-second Article of War provides 
that " except for desertion in time of war, repeated desertion in time 
of peace, and mutiny no person shall, under the sentence of a court- 
martial, be punished by confinement in a penitentiary unless an act 
or omission of which he is convicted is recognized as an offense o± a 
civil nature by some statutes of the United States or at the common 
law as the same exists in the District of Columbia, • . I his 

office has recently held that buccal coitus under the clear trend ot 
modern authority is included within the crime of sodomy at the 
common law as the same exists in the District of Columbia, and that 
this is sufficient to authorize confinement in a penitentiary in cases ot 
this character. 
SENTENCE: Dishonorable discharge. 

A soldier who had been in the service less than a month, in testi- 
fying in his own behalf upon trial for larceny, disclosed his desire 
to escape military service by the following statement : 



110 DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF AKMY. 

"This stuff was taken more through soreness and agony than any- 
thing else. It wasn't the value of the stuff, because it could be bought 
a whole lot cheaper, I expect, than it was got." 

The court practically gratified his desire by imposing a sentence 
of dishonorable discharge and six months' confinement. Encourage- 
ment to commit offenses for purpose of escaping military service im- 
parted by lenient sentences, especially at this time, is bound to result 
detrimentally to the service. The duty of courts-martial to impose 
sentences possessing sufficient deterrent effect to prevent the resort by 
a certain class of men to the commission of crime as a means of get- 
ting out of the Army is one which can not be ignored. 

SENTENCE : Punishment for desertion committed in time of peace. 

In the case of a soldier tried after the declaration of war for deser- 
tion on January 12, 1917, the president of the court, in advising the 
accused of the effects of his plea of guilty of absence without leave, 
properly stated the maximum punishment imposable by the court 
thereunder to be dishonorable discharge, total forfeitures, and con- 
finement at hard labor for six months, which is the limit prescribed 
by the Executive order of September 5, 1914, in effect at the time 
the accused left his organization. The reviewing authority, in a 
lengthy order acting upon the case, quoted part of a department 
bulletin relative to the abrogation by the declaration of war of the 
limits-of-punishment order promulgated by the President, and criti- 
cized the court and the judge advocate in the following language : 

" This bulletin was published in order that notice should be brought 
to all officers and in order that such mistakes as was made in this 
case should not occur. It is apparent that the judge advocate, presi- 
dent, and members of this court were negligent in not reading bulle- 
tins published for their instruction and guidance." 

This view of the reviewing authority was erroneous. The limits 
of punishment prescribed by the President should be observed by 
courts and reviewing officers with respect to all crimes committed 
prior to the declaration of war, as they are peace-time and not war- 
time offenses, even though the trials occur in time of war. The time 
of commission of the offense and not the time of trial governs the 
punishment therefor. 

DECISIONS OF COURTS. 

JURISDICTION OF COURTS-MARTIAL OVER CIVILIANS ON ARMY 
TRANSPORT. 

The opinion of the United States District Court, Southern Dis- 
trict of New York, in the case of Charles E. Gerlach is as follows: 

Augustus N. Hand, District Judge: 

Charles E. Gerlach, an employee of the United States Shipping 
Board, went to Europe as mate on the steamship McClellan, a ves- 
sel apparently in use as a military transport, though this fact was 
not definitely proved. He was there discharged and sent back on 
the El Occidente, an Army transport, to New York. He volun- 
teered to stand watch and for several days did this, but finally re- 
fused to continue. For this disobedience to the militarv order of 



DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF ARMY. Ill 

an Army officer he was tried by court-martial and sentenced to five 
years' imprisonment. 

The second article of war (R. S. 1342, as amended by the act 
of Aug. 29, 1916, 39. Stat., 573) reads as follows: 

"The following persons are subject to the Articles of War: (e) 
All retainers to the camp and all persons accompanying or serving 
with the armies of the United States without the territorial 
jurisdiction of the United States, and in time of war- all such 
retainers and persons accompanying or serving with the armies of 
the United States in the field, both within and without the terri- 
torial jurisdiction of the United States, though not otherwise sub- 
ject to the Articles of War." 

I think Gerlach was a person accompanying the Army of the 
United States, and also voluntarily serving with the armies of the 
United States at the time he disobeyed the order. I further hold 
that, he was " in the field " and without the territorial jurisdiction 
of the United States within the meaning of the article. The words 
" in the field " do not refer to land only, but to any place, whether 
on land or water, apart from permanent cantonments or fortifica- 
tions, where military operations are being conducted. In this case 
he was on an Army transport, and peril from submarines existed 
when he refused to stand watch. The captain in charge of the 
vessel had, in my opinion, the right to call upon all persons on 
board to protect the transport in any way that seemed best, in view 
of the danger. The section of the Articles of War subjecting per- 
sons accompanying armies to military authority not only enables 
military officers to preserve order on the part of such persons, but 
also, in the cases that it covers, to call on them for assistance and 
direct their action while they are properly in the field of military 
operations. The court-martial, therefore, had exclusive jurisdiction 
by the terms of the Articles of War over this man, who not only ac- 
companied the Army but volunteered to serve, unless the act of Con- 
gress which adopted the Articles of War is unconstitutional. 

Section 8 of Article I of the Constitution is the source of au- 
thority for the Articles of War. Congress is thereby given power 
to raise and support armies, to make rules for the government of 
land and naval forces, and to make all laws which shall be neces- 
sary for carrying into execution the foregoing powers and all other 
powers vested by the Constitution in the Government of the United 
States. This is in aid of the general war power, and ought to be 
given a broad scope in order to give the fullest protection to the 
Nation. That an officer should be able to call upon a person ac- 
companying the military forces, who had volunteered and, indeed, 
asked to stand watch, as Gerlach had, to protect a transport and its 
occupants in time of danger by standing watch, is certainly within 
the fair object of the Articles of War, and is a reasonable power for 
carrying into execution the government of military forces. The act 
is therefore, in my opinion, constitutional. 

The writ was properly dismissed and the prisoner remanded to 
(lie custody of the military authorities. 

December 10, 1917. 



DIGEST OF CERTAIN OTHER OPINIONS OF THE JUDGE ADVOCATE 
GENERAL OF THE ARMY PUBLISHED IN VOL. 1, OPS. J. A. G. 
1917. 

NATIONAL DEFENSE ACT: National Guard; State administrative staff 
officers. 

The Judge Advocate General in a memorandum for the Chief of 
the Militia Bureau, dated February 1, 1917, rendered an opinoin 
holding that the national defense act (39 Stat. 166) requires that 
the organization of the National Guard as a whole, and not the 
National Guard in each State, Territory, and the District of Colum- 
bia, shall be the same as that prescribed for the Regular Army ; and 
that consequently such State administrative staff officers as are ad- 
ditional to those authorized by the national defense act, in so far as 
their relations to the general government are concerned, are in the 
same status as adjutants general of the various States, that is, they 
are designed for the administrative functions of the State and do 
not constitute a part of the National Guard as authorized by the 
national defense act. This opinion is adhered to. 

Ops. J. A. G. 58-210, Apr. 2, 1917. 

ENLISTED RESERVE CORPS: Railway engineer regiments, organiza- 
tion of. 

Section 55 of the national defense act (39 Stat. 166, 196), which 
provides for the ordering to active service of the Enlisted Reserve 
Corps, contains no authority for the formation of organizations and 
the creation of officers but contemplates the use of the members 
thereof with existing organizations of the Regular Army. The 
authority contained in sections 1 and 8 of the selective draft act 
(40 Stat. 76, 81) to appoint general officers and line and staff officers 
is limited to officers necessary for the forces thereby created, and is 
not applicable to brigades composed of regiments of such reserves. 
The President may, however, authorize the reenlistment of the men 
already enlisted for the Engineer Reserve regiments under the pro- 
vision contained in section 2 of said selective draft act, for the 
organization of special and technical troops, and he may then officer 
them, organize them into brigades, and appoint brigade commanders, 
under the authority of section 8 of said act. 

Ops. J. A. G. 6-302.1, May 26, 1917. 

ENLISTMENT: Reenlistment during the emergency. 

A sergeant, first class, Quartermaster Corps, may not be permitted 
to reenlist for general recruiting service upon what would normally 
be the termination of his term of active service under his present en- 
listment, June 29, 1917, because by section 7 of the selective draft 
act of May 18, 1917 (40 Stat. 76, 81), all enlistments continue in 
force during the emergency unless sooner discharged. He may, 
however, be transferred to the general recruiting service if such 
action is deemed advisable. 

Ops. J. A. G. 28-240, May 26, 1917. 
112 



DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF ARMY. 113 

ENLISTMENT : Qualifications for enlistment in National Guard. 

The qualifications and conditions for voluntary enlistment pre- 
scribed in section 7 of the selective draft act (40 Stat. 76, 81) are 
not applicable to enlistment in the National Guard when it is not in 
the Federal service. 

Ops. J. A. G. 58-232, May 29, 1917. 

ARMY: ENLISTED RESERVE CORPS: Railway engineer organizations. 

The Enlisted Eeserve Corps is an independent corps which may be 
assigned to duty with the Regular Army or other component part 
of the Army of the United States, but which can not be integrated 
therewith. The provisions of clause 3, section 1, selective draft act 
(40 Stat. 76), for the appointment of officers is not applicable 
thereto. 

Ops. J. A. G. 302.1, June 4, 1917. 

ENLISTED RESERVE CORPS: Railway engineer regiments, organiza- 
tion of. 

Since officers may not be appointed for organization of members of 
the Enlisted Reserve Corps, but must, under section 55 of the na- 
tional defense act (39 Stat. 166, 195), be supplied by the detail of 
Regular Army officers or the assignment of members of the Officers' 
Reserve Corps it is necessary to reorganize the regiments referred to 
by discharging the enlisted men from the Enlisted Reserve Corps 
and reenlisting them as technical troops under the authority of the 
proviso of section 2 of the act of May 18, 1917 (40 Stat. 76, 77) . For 
this purpose an Executive order directing the organization must be 
issued in order to bring into being the organization into which the 
men now included in the provisional organizations are to be em- 
bodied. 

Ops. J. A. G. 6-302.1, June 5, 1917. 

ENLISTED RESERVE CORPS : Railway engineer regiments, appointment 
of general officers. 

General officers can not be appointed for brigades and divisions 
consisting of regiments composed of enlisted reservists organized 
under section 55 of the national defense act (39 Stat. 166, 195). If, 
however, such organizations of enlisted reservists are transformed 
by reenlistment into organizations of special and technical troops 
created under the authority of the proviso of section 2 of the selective 
draft act, such general officers may be appointed under authority of 
section 8 of that act. 

Ops. J. A. G. 6-302.1, June 7, 1917. 

FIELD CLERKS, QUARTERMASTER CORPS: Temporary vacancy. 

In the case of a field clerk. Quartermaster Corps, who is a member 
of the Officers' Reserve Corps and is ordered as such to active duty, 
the resulting vacancy in the field clerkship should be filled by a tem- 
porarv appointment. 

Ops. J. A. G. 6-135, June 7, 1917. 

CONTRACTS: Munitions of war; Right of Secretary of War to order a 
manufacturer to furnish supplies to be transferred to an allied gov- 
ernment. 

Where a manufacturing company doing business in the United 
States and under contract to manufacture necessary munitions of war 
151738—20 S 



114 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

for the British Government refuses to renew such contract except 
upon terms which are arbitrary and unfair, the Secretary of War, 
by authority of section 120 of the national defense act (39 Stat. 166, 
213), may order such contractor to furnish such munitions to the 
Government of the United States, at a price to be fixed by the Secre- 
tary of War if the contractor refuses to furnish the same at a reas- 
onable price, and such munitions when delivered to this Government 
may be transferred to the British Government under an arrangement 
for reimbursement bv the British Government for the cost thereof. 
Ops. J. A. G. 99-301, June 9, 1917. 

ARMY : Issuance of new commissions to officers of former Quartermaster's, 
Subsistence, and Pay Departments. 

It is not necessary that the President should appoint or issue new 
commissions to the officers of the Quartermaster's, Subsistence, and 
Pay Departments of the Army, which by section 3 of the act of 
August 21, 1912 (37 Stat, 569, 591), were consolidated into the Quar- 
termaster Corps of the Army. The statute expressly provides that 
the officers of said departments as consolidated " shall hereafter be 
known as officers of said corps and by the titles of the rank held by 
them therein." If any new commissions to the officers so transferred 
are issued under the statute, no nomination or confirmation is neces- 
sarv. 

Ops. J. A. G. 6-224, June 13, 1917. 

ARMY: Special and technical troops; Recruit training units. 

The special and technical troops authorized by section 2 of the se- 
lective draft act are in addition to the number of drafted forces 
authorized elsewhere in said act. (40 Stat. 76, 77.) 

The recruit training units authorized by section 1 of said act 
are to be raised by draft exclusively, even though designed to main- 
tain, among other forces, organizations of the Regular Army and 
drafted National Guard. Nevertheless, men who have voluntarily 
enlisted may, by administrative action, be trained in those units, 
although they can not legally be members thereof. 

Ops. J. A. G. 6-200, June 15, 1917. 

ARMY CHAPLAINS: Qualifications for appointment. 

The amendment of section 15 of the national defense act (39 Stat. 
166, 176) contained in the Army appropriation act of May 12, 1917 
(40 Stat. 40, 72), as to the appointment of chaplains in the Army, 
became effective from the date of its approval, and leaves the quali- 
fications for appointment to that office as prescribed in the general 
law (31 Stat. 748, 750). Thus a person over 40 years of age and 
under 41, who was nominated but not appointed prior to May 12, 
1917, is not eligible for appointment as chaplain. 

Ops. J. A. G. 64-233.3, June 16, 1917. 

OFFICE: Philippine Scouts; Eligibility of officers of, for appointment as 
second lieutenants, Regular Army. 

Philippine Scout officers to be eligible for appointment as pro- 
visional second lieutenants of the Regular Army must be unmarried. 
Clause 2 of the second paragraph of section 24 of the national-de- 
fense act (39 Stat. 166, 182) gives to officers of the Philippine Scouts 
the same privileges and subjects them to the same requirements as 



DIGEST OP OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 115 

enlisted men of the Army; and the latter are specifically required 
by the statute to be unmarried in order to be eligible for appoint- 
ment as provisional second lieutenants. The amendment of said sec- 
tion 24, contained in the act of May 12, 1917 (40 Stat. 40, 44) , does 
not affect this question. 

Ops. J. A. G. 64-212, June 16, 1917. 

ARMY: Corps of interpreters, authority for organization of. 

A proposed corps of interpreters, to consist of a commissioned 
personnel numbering 100 and an enlisted personnel numbering 72, 
may not be organized as " special and technical troops " under sec- 
tion 2 of the selective draft act (40 Stat. 76, 77). They may, how- 
ever, be included in headquarters organizations under authoritj^ of 
section 3 of the national defense act (39 Stat. 166). 

Ops. J. A. G. 6-200, June 20, 1917. 

PAY AND ALLOWANCES: Right to extra-duty pay; Distinction between 
extra duty and special duty. 

Since the right to extra-duty pay is given by statute and can 
therefore be taken away only by legislation, instructions of the Sec- 
retary of War that no extra-duty pay will be allowed after the 
approval of any act giving increased pay can not operate to deprive 
enlisted men who are actually employed in extra duty in pursuance 
of competent orders of the right to receive extra pay therefor. 

Ops. J. A. G. 72-230, June 20, 1917. 

SELECTIVE-DRAFT ACT: Applicable to Porto Rico and Poto Ricans. 

The selective draft act (40 Stat. 76) applies to Porto Rico. All 
citizens and natives of Porto Rico who had not declared their inten- 
tion not to become citizens of the United States on or before May 18, 
1917, are subject to registration and draft. 

Ops. J. A. G. 6-250, June 22, 1917. 

ARMY: Personal aids for major generals and brigadier generals. 

The Secretary of War can not authorize a major general to have, 
during the period of the emergency, one or more majors as personal 
aids, not to exceed three, in lieu of a like number of captains or lieu- 
tenants ; nor can he authorize a brigadier general to have one or more 
captains as personal aids. Sections 11 and 14 of the selective draft 
act (40 Stat. 76, 82, 83), do not suspend the restrictions contained in 
section 1098, Revised Statutes. 

Ops. J. A. G. 6-200, June 26, 1917. 

SELECTIVE DRAFT ACT: Citizenship; Expatriation after enactment of 
draft act. 

United States citizenship is acquired by the mere fact of birth 
within the United States of a person owing allegiance, temporary or 
permanent, to the United States. Aliens who have acquired Ameri- 
can citizenship, in the event of their return to the country of origin 
and reacquisition of their original citizenship, either by choice or by 
recovery, will simply lose American citizenship by one of these two 
facts. Any American citizen, whether native born or naturalized, 
who acquired foreign citizenship prior to the passage of the selective 
draft act (40 Stat. 76) would not fall within the terms of the act; 



116 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

but expatriation after the passage of the act would not exempt a per- 
son from his obligation to render involuntary service thereunder. 
Ops. J. A. G. 13-210, June 26, 1917. 

ARMY: Increase in enlisted personnel of Regular Army. 

Under authority of section 1 of the selective draft act (40 Stat. 
76), the President can now increase the enlisted personnel of the line 
of the Army to the extent necessary to organize all line organizations 
to meet the essential requirements of the existing emergency. 

Ops. J. A. G. 6-200, June 28, 1917. 

OFFICE: Age requirements of enlisted men, candidates for appointment 
as second lieutenants. 

To be eligible for appointment to vacancies in the grade of second 
lieutenant created or caused by increases due to the national defense 
act (39 Stat. 166), enlisted men of the Army must be between the 
ages of 21 and 31 years, while for appointment to other vacancies 
there is no statutory minimum age limit for such candidates. 

Ops. J. A. G. 64^212, June 28, 1917. 

ARMY: Burial expenses of cadets. 

There is no appropriation available for the payment of burial ex- 
penses of cadets of the United States Military Academy. 
Ops. J. A. G. 6-131, June 30, 1917. 

PANAMA CANAL ZONE : Transportation for troops on west side of Canal 
Zone. 

In order to furnish necessary transportation to troops isolated on 
the west side of the Panama Canal, it is permissible for the Quarter- 
master Department either to lease from the Panama Railroad the 
necessary tracks and equipment and operate it as an Army plant, or 
to charter the west side system of the Panama Railroad as a going 
concern. 

Ops. J. A. G. 92-523.2, June 30, 1917. 

ARMY: Enlistment; Voluntary enlistment in Regular Army and Na- 
tional Guard after draft is resorted to. 

Under section 2 of the selective draft act (40 Stat. 76, 77) two 
methods are provided for raising and maintaining the Regular Army 
and National Guard, viz, voluntary enlistment and draft. They 
may be used concurrently. Men voluntarily enlisted for the Regular 
Army or National Guard may be attached to units raised by draft 
under section 1 of said act. 

Ops. J. A. G. 34-050, July 2, 1917. 

OFFICE: Selective Draft Act; Time of appointing officers for service in 
National Army. 

The selective draft act (40 Stat. 76) imposes no restrictions as to 
the time when appointments of officers of the National Army are to 
be made. Officers for units to be organized may be appointed before 
completion of the organization thereof. 

Ops. J. A. G. 6-200, July 3, 1917. 

OFFICERS' RESERVE CORPS : Public and private mounts. 

In view of the temporary status with respect to active duty of 
reserve officers, the Secretary of War may prescribe that they will 
be furnished with the necessary public mounts save in the exceptional 



DIGEST OF OPINIONS yUDGfE ADVOCATE GENEEAL OF ARMY. 117 

cases where the interests of the Government require them to provide 
themselves with mounts under the terms of the act of May 11, 1908. 
(35 Stat. 106, 108.) 
Ops. J. A. G. 94-011, July 3, 1917. 

CONTRACTS: Unauthorized contracts by National Guard officers in Fed- 
eral service for hire and purchase of horses and mules. 

Contracts made by National Guard officers without authority from 
the War Department for the hire and purchase of horses and mules 
for use in Federal service are not binding upon the United States. 
The War Department may, however, pay a reasonable compensation 
for the hire of such draft animals used by the National Guard in the 
Federal service as were actually necessary under the circumstances. 

Ops. J. A. G. 58-301, July 5, 1917. 

MESS SERGEANTS : Detail of enlisted men. 

Enlisted men of any grade may be detailed as mess sergeants, but 
such details from the grade of sergeant, first class, Medical Depart- 
ment, may be made only by special authority of the Surgeon General 
in each individual case. 

Ops. J. A. G. 72-200, July 7, 1917. 

MILITIA: Pay and allowances; Retired enlisted man commissioned in 
federalized National Guard. 

A retired enlisted man of the Regular Army is eligible as an officer 
of a National Guard regiment to be mustered into the Federal service 
without being first discharged as a retired enlisted man. While in 
receipt of pay as such National Guard officer his pay as a retired en- 
listed man will be discontinued. Upon discharge from Federal serv- 
ice as a National Guard officer his right to retired pav will be revived. 

Ops. J. A. G. 88-931, July 7, 1917. 

OFFICERS' RESERVE CORPS: Eligibility of military storekeeper and 
second lieutenants, Quartermaster Corps, for higher grades in Reserve 
Corps. 

The military storekeeper and second lieutenants, Quartermaster 
Corps, can not be given higher rank in the Officers' Reserve Corps, 
Quartermaster section, but they are eligible for temporary commis- 
sions in the regular forces. 

Ops. J. A. G. 82-120, July 7, 1917. ■ 

APPROPRIATIONS: Vocational training at Disciplinary Barracks. 

Appropriations for the initiation and maintenance of vocational 
training in the Army are applicable to the establishment and main- 
tenance of such training in the disciplinary organizations at the Dis- 
ciplinary Barracks at Fort Leavenworth, Kans. 

Ops. J. A. G. 56-129.4, July 10, 1917. 

WAR: Censorship of cable dispatches. 

The President may, in the absence of legislation by Congress on the 
subject, prohibit the operation of any cable connection with a foreign 
country if in his judgment such action is necessary to the safety of 
our troops or the proper concealment of military plans and opera- 
tions; or he may permit their continued operation under conditions 
that will prevent such operation from being hurtful to the interests 
of the Government. To this end the Secretary of War, acting for 
the President, may establish a censorship over cable dispatches 
arriving in this country or leaving this country as a condition to 



118 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

permitting 1 the continued operation of the cable connections with 
foreign countries. 
Ops. J. A. G. 99-270, July 10, 1917. 

ARMY NURSES: Commutation of rations of nurses on duty in France. 

Where nurses are on duty in France at hospitals in which the regu- 
lar hospital mess system is not used and the nurses do not have the 
benefit of the economies of such system, they may be regarded as on 
detached duty within the meaning of Army Regulations 1223 and be 
given commutation of rations at the rate of $1 per day. But if sub- 
sisted in a regular hospital mess operated under the officer in com- 
mand of the hospital, the only rate of commutation allowable is 
that fixed by the Army appropriation act (40 Stat. 40, 50). 

Ops. J. A. G. 6-227.2, July 13, 1917. 

CIVILIAN EMPLOYEES: Pay; Right of employees of Army Medical 
Supply Depot to extra pay for overtime work. 

Permanent employees of the Army Medical Supply Depot, who 
are paid on an annual basis, are not entitled to extra pay for over- 
time work. 

Ops. J. A. G. 16^102, July 13, 1917. 

CONFINEMENT: Date when sentence begins to run. 

A sentence of confinement begins to run on the date of the order 
publishing the case, although the reviewing authority, in excess of 
his authority, sought to suspend the sentence. 

Ops. J. A. G. 30-823.1, July 13, 1917. 

CONTRACTS: Settlement of claim for unliquidated damages; disposition 
of proceeds of sales of old materials. 

Where a contract makes no provision for determining disputes 
arising thereunder, a claim for breach thereof is such an unliqui- 
dated claim as can not be compromised or settled by executive officers 
of the Government. Nor can the proceeds of a sale of old materials 
be used to offset a claim growing out of a separate contract, for such 
proceeds are required to be deposited in the Treasury as " Miscel- 
laneous receipts." 

Ops. J. A. G. 76-700, July 17, 1917. 

PUBLIC PROPERTY : Sale of private mount by officer to Government. 

Army regulation 1095 authorizes the purchase by the Govern- 
ment from a mounted officer of the Army of a mount theretofore pur- 
chased by the officer from the Government, even though such officer 
is not relieved from mounted duty or ordered to duty beyond seas or 
required to make a change of station involving an expense exceeding 
$100 for the transportation of such mount. 

Ops. J. A. G. 94-011, July 18, 1917. 

PUBLIC HEALTH SERVICE: Right to purchase uniform clothing and 
quartermaster supplies. 

Army regulation 1174 (C. A. E. No. 58, June 6, 1917) does not 
authorize the sale of uniform clothing and other quartermaster sup- 
plies to commissioned officers and employees of the Public Health 
Service, which was made a part of the military forces of the United 
States by the Executive order of April 3, 1917. 

Ops. J. A. G. 14-122.5, July 19, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OE ARMY. 119 

CONTRACTS: Right to modify or cancel Government contract because 
of hardship on contractor. 

The fact that the cost of raw materials has for unforeseen reasons 
so advanced as to make the contract price for ether agreed to be fur- 
nished the Government so inadequate as to compel the contractor to 
operate at a loss furnishes no legal justification for a modification or 
cancellation of the contract. 

Ops. J. A. G. 76-610, July 23, 1917. 

OATHS: Right of assistant to department adjutant to administer oaths 
for military purposes. 

An assistant to a department adjutant is not an " adjutant of any 
command " within the terms of the one hundred and fourteenth ar- 
ticle of war and has no authority to administer an oath for purposes 
of military administration. 

Ops. J. A. G. 64-219, July 24, 1917. 

RANK: Relative rank of officers in Regular Army, National Army, Na- 
tional Guard, and Officers' Reserve Corps. 

OFFICE: Eligibility of officers in Regular Army and National Guard for 
commissions in Officers' Reserve Corps. 

Officers of the Officers' Reserve Corps, when ordered to active duty, 
take rank as " officers of forces drafted or called into service of the 
United States " under the one hundred and nineteenth article of war. 
Officers of the Regular Army commissioned in a higher grade of the 
National Army are entitled to rank as if their commissions in the 
National Army were commissions in the Regular Army. 

An officer of the Regular Army or of the National Guard on the 
active list may not be appointed to the Officers' Reserve Corps. 

Ops. J. A. G. 82-200, July 25, 1917. 

PAY AND ALLOWANCES: Right to pay of soldier injured while con- 
fined in hospital on account of disease resulting from his own miscon- 
duct. 

Where a soldier, absent from duty in a hospital on account of dis- 
ease resulting from his own misconduct, receives an injury in the 
course of medical treatment properly and skillfully administered and 
is absent from duty for a further period on account of such injury, 
he is entitled to receive no pay for such further period. If the injury 
is due to improper or unskillful treatment, he is entitled to pay for 
the period of absence occasioned thereby. 

Ops. J. A. G. 72-210, July 26, 1917. ' 

RAILROADS: Compensation of land-grant railroad for transporting 
troops. 

A railroad receiving a land grant under the act of July 28, 1866 
(14 Stat. 338), is required to transport property and troops of the 
United States at the cost charge and expense of the company or cor- 
poration owning or operating it and is not entitled to compensation 
therefor under the Army appropriation act of Mav 12, 1917 (40 
Stat. 40, 54.) J ' v 

Ops. J. A. G. 94-061, July 27, 1917. 

MILITIA: Effect of draft of National Guard organization into Federal 
service on prior offenses and existing courts-martial. 

Members of the National Guard in the Federal service on August 5, 
1917, and drafted as of that date continue their status as persons in 



120 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

the military service, and jurisdiction over offenses committed by them 
prior to August 5, 1917, continues. General courts-martial existing 
in the National Guard on August 5, 1917, ceased to exist at the time 
of the draft, and have no authority thereafter to function. 
Ops. J. A. G. 28-711, July 30, 1*917. 

ARMY BANDS: Rendering gratuitous service; Competition with civilian 
bands. 

The giving of a public concert by a military band by direction of 
its commanding officer, for which the members of the organization 
receive no compensation either as individuals or as an organization, 
does not constitute an interference with the customary and regular 
engagement of local civilians within the inhibition of section 35 of 
the national defense act (39 Stat. 166, 188). 

Ops. J. A. G. 8-421, Aug. 1, 1917. 

CONTRACTS: Designation of newspapers for advertising. 

The requirements of section 3828, Revised Statutes, are complied 
with by the Secretary of War's granting general authority in writing 
to a subordinate officer to insert advertisements in newspapers to be 
selected by the latter in a given locality, provided that the subordi- 
nate officer gives specific orders in writing to each of such newspapers 
for the particular advertisements. The granting of such authority 
will constitute a waiver of the requirements of Army Regulations 
499 so far as the same are inconsistent herewith. 

Ops. J. A. G. 76-110, Aug. 1, 1917. 

APPROPRIATIONS: Rental of building in Washington, D. C, for use of 
Army Medical School. 

The item for contingent expenses under the War Department ap- 
pearing in the urgent deficiency act of June 15, 1917 (40 Stat. 182), 
is available only for expenses of the War Department as an executive 
department and not for expenses of the Military Establishment. 
Consequently, it can not be used for the rental of a building for a 
service school such as the Army Medical School. The use of appro- 
priations pertaining to the Quartermaster Corps for such purpose, 
if the building is located in Washington, is forbidden by the act of 
June 22, 1874 (18 Stat. 133, 144). 

Ops. J. A. G. 5-111, Aug. 3, 1917. 

OFFICE: Whether election of National Guard officer to advanced grade 
is an appointment or a promotion. 

An officer of the Regular Army, where promotions are required by 
statute to be made according to seniority, subject to examination, is 
entitled to the pay of the advanced grade from the date of the va- 
cancy to which he is promoted. Where promotions are not made ac- 
cording to seniority, each promotion is regarded as a new appoint- 
ment; and the officer thus promoted is entitled to the pay of the ad- 
vanced grade from the date of acceptance of his commission therein. 
An officer of the National Guard elected to an advanced grade must 
be regarded as appointed rather than as promoted by senioritv. 

Ops. J. A. G. 58-700, Aug. 4, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 121 

CONTRACTS: Advance payment; Payment for goods purchased f. o. b. 
shipping point after delivery there but before their receipt at desti- 
nation. 

Where goods are bought f. o. b. shipping point, payment for them 
after delivery f. o. b. shipping point and before their receipt at point 
of destination is not an advance payment within the inhibition of 
Eevised Statutes 3648. 

Ops. J. A. G. 76-700, Aug. 6, 1917. 

ARMY: Drafted forces not part of the Regular Army. 

The forces brought into the Army of the United States by draft 
are not part of the Regular Army. The Regular Army is that force 
raised and supported by Congress, maintained in peace and war, and 
having a continuous and permanent existence. It is, of course, a 
component part of the Army of the United States, but is separate 
and distinct from the drafted forces. Hence, legislation which pro- 
hibits members of the Regular Army from voting does not affect 
members of other component forces of the Army of the United States. 

Ops. J. A. G. 86-210, Aug. 7, 1917. 

APPROPRIATIONS: Rental of building in Manila to house soldiers on 
leave. 

The appropriation for " Barracks and quarters " (39 Stat. 619, 638) 
is limited to the provision of shelter and protection for officers, and 
enlisted men of the Army at military posts and stations, and can not 
properly be applied to the lease of a building to supply men with 
accommodations while on leave and away from their stations. Ar- 
rangements for such temporary accommodations might be made by 
the post exchange. 

Ops. J. A. G. 40-100, Aug. 8, 1917. 

PAY AND ALLOWANCES : Forfeiture of right to reservist's pay by fail- 
ure to report address, etc. 

Answering to the call and reporting to active service by a member 
of the Regular Army Reserve does not remove any bar that may have 
previously existed against the receipt of reservist's pay by him be- 
cause of his failure to report his address and to present himself to 
the postmaster or to an Army or Navy officer with the request that 
such postmaster or officer sign a' statement that he is apparently in 
good physical condition. 

Ops. J. A. G. 6-300, Aug. 8, 1917. 

ARMY: Grade of mess sergeant for Engineer band. 

By the national defense act (39 Stat. 166) the grade of mess ser- 
geant is created for companies of the Engineer Corps but none is pro- 
vided for the Engineer band. Accordingly, pursuant to rulings of 
the Comptroller (22 Comp. Dec, 718; 81 M*S. Comp. Dec. 164), since 
there is no statutory provision for the grade of mess sergeant in the 
Engineer band, the presumption is that Congress did not intend the 
band to have a mess sergeant, and it is not lawful to detail a mess 
sergeant to the band under the provisions of Army Regulations 1346. 

Ops. J. A. G. 72-200, Aug. 10, 1917. 



122 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF AEMY. 

CONTRACTS: Validity of option for renewal by Government of lease of 
cantonment sites from year to year. 

Covenants giving the Government options for renewal from year 
to year contained in leases of cantonment sites are perfectly valid. 
They give the Government no legal interest in the premises beyond 
the term of the lease, though they do give it the right to enforce the 
covenants of the landlord in equitv. 

Ops. J. A. G. 80-710, Aug. 13, 1917. 

MILITIA BUREAU : Status after National Guard is drafted into Federal 
service. 

The Militia Bureau is to be maintained as a separate bureau with 
a general officer as its head during the present war, notwithstanding 
the draft of the National Guard. Such general officer may be de- 
tached and placed in command of troops. Administrative arrange- 
ments may be made for access to the records of the Militia Bureau 
by The Adjutant General and for the employment of clerks of the 
bureau in the office of The Adjutant General. 

Ops. J. A. G. 6-212, Aug. 15, 1917. 

PAY AND ALLOWANCES: Absence; Failure of soldier to report to or- 
ganization after discharge from hospital. 

An enlisted man of a militia organization called into Federal serv- 
ice while an inmate of a division hospital, suffering from rheumatism, 
was sent by order of the commander of such hospital to a civil hos- 
pital for treatment. He was subsequently discharged from the latter 
hospital, but never rejoined his organization which continued in 
Federal service for some months and was then mustered out. Held, 
that the soldier must be considered as having been absent without 
leave from the time of his discharge from the hospital until the 
muster out of his organization. Hence he is not entitled to receive 
pav or allowances for such period. 

Ops. J. A. G. 58-700, Aug. 15, 1917. 

RETIREMENT: Pay and allowances; Assignment of retired officer to ac- 
tive duty. 

A retired officer, assigned to active duty and ordered to report for 
assignment to duty, is entitled to full pay from the date he enters 
upon such duty, and not from the date of notice to him of the original 
order of assignment. It is immaterial that the War Department 
order placing this officer on active 'duty did not expressly refer to 
section 24 of the national defense act (39 Stat. 166, 182) and did 
not purport to be by direction of the President, since it was in 
fact issued as a war measure "for the purpose of relieving an officer- 
still on the active list for duty in the field "; and since, being issued 
by the Secretary of War, it must be assumed that the order was in 
fact the order of the President, although the order does not specifi- 
cally so state. 

Ops. J. A. G. 88-630, Aug. 16, 1917. 

APPROPRIATIONS: Telegrams sent by Civil Service Commission for 
benefit of Ordnance Department. 

Bills for telegrams sent out by the Civil Service Commission di- 
recting in urgent cases eligibles for positions in the Ordnance De- 
partment to report for service, are not payable from the authoriza- 



DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF ARMY. 123 

tion under the provision in the Army appropriation act (40 Stat. 40, 
52) entitled: "Incidental expenses, Quartermaster Corps,'' since that 
provision is limited to " cost of telegrams or official business received 
and sent by officers of the Army." 
Ops. J. A. G. 22-011.1, Aug. 20, 1917. 

PUBLIC PROPERTY: Rights of Government to make regulations respect- 
ing vehicles suspected of carrying liquor into Gettysburg National Park. 

The United States has jurisdiction to issue traffic regulations for 
automobiles using that part of the Emmitsburg Road which extends 
from the crossing of the Wheatfield Road southwestward to the 
boundary of the park. The local officers of the Gettysburg National 
Park have authority to exclude therefrom vehicles suspected of carry- 
ing intoxicating liquors, if the persons in charge thereof refuse to 
allow them to be inspected. 

Ops. J. A. G. 80-433, Aug. 21, 1917. 

PAY AND ALLOWANCES : Extra-duty pay of Corregidor prison guards. 

The members. of the battalion of Philippine Scouts kept perma- 
nently at Corregidor as prison guards may be granted extra-duty 
pay in order to make this onerous work attractive and to keep the 
companies recruited up to full strength. Congress has authorized 
the Secretary of War to fix the pay of the Philippine Scouts at rates 
not to exceed those authorized for the Regular Army. Enlisted men 
of the Regular Army assigned to duty as prison guards receive 
extra-duty pav by authority of Congress. 

Ops J. A. G. 6-250, Aug. 22, 1917. 

OFFICE: Eligibility for promotion of officers holding provisional com- 
mission. 

So far as transfer and promotion are concerned, an officer hold- 
ing a provisional commission in the Regular Army must be regarded 
exactly as if his commission were permanent. 

Ops. J. A. G. 64-221, Aug. 27, 1917. 

APPROPRIATIONS: Expenses of reporters and witnesses at examining 
boards for promotion and efficiency boards. 

Boards for the examination of officers for promotion, and effi- 
ciency boards are authorized by law. Where the War Department 
deems the services of reporters and the presence of civilian wit- 
nesses necessary for the proper conduct of the business of such 
boards, the expenses thereof may be paid from the appropriation 
(40 Stat. 40, 53), "Incidental expenses, Quartermaster Corps/ 1 

Ops. J. A. G. 5-244, Aug. 28, 1917. 

PAY AND ALLOWANCES: Procedure on payment of pay due insane offi- 
cers and enlisted men. 

There is no practicable way of covering the payment of pay due 
insane officers and soldiers except by resorting to legal proceedings 
for the appointment of a guardian or committee for the insane per- 
son. The party being incompetent to receive and receipt for his 
own pay, if payment is to be made, it is necessary that it be made 
to some one who has the legal authority to act on his behalf: and 



124 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

the only one who would have such authority would be a committee 
or guardian appointed pursuant to law. 
Ops. J. A. G. 44-010, Aug. 28, 1917. 

EIGHT-HOUR LAW : Contracts for ordnance and ordnance supplies. 

Since the Ordnance Department manufactures but a very small frac- 
tion of its total needs of horse equipment and artillery harness, and 
since other bureaus procure these classes of articles entirely by contract, 
these articles are not, within the operation of the eight-hour act of 
June 19, 1912 (37 Stat. 137), but fall within the exception therein con- 
tained as to classes of articles which may be purchased in the open 
market. Hence, under existing conditions, contracts for this class 
of articles are not required to contain the eight-hour provision ; and, 
further, not being within the eight-hour statute, they are not within 
the provision of the naval appropriation act approved March 4, 1917 
(39 Stat. 1168, 1192), requiring extra pay for overtime work. 

Ops. J. A. G. 32-313, Aug. 30, 1917. 

EIGHT-HOUR, LAW: Ohio River dam. 

The work of building Dam No. 31, Ohio River, may properly be 
regarded as within the terms of the Executive order of April 28, 1917, 
suspending the application of the eight-hour law with respect to con- 
tracts having relation to work for national defense. It is recom- 
mended that it be so regarded. 

Ops. J. A. G. 32-212, Aug. 30, 1917. 

OFFICE: Effect of acceptance of commission in one of the component 
forces of the Army of the United States upon a commission held in 
another force of said Army. 

Except in the cases of officers of the Regular Army whose rights 
are protected by statute, an officer in one of the component forces of 
the Army of the United States may not hold a commission in another 
such component, and if he be appointed to any such second office, 
he thereby vacates his former commission. 

Ops J. A. G. 64-311, Aug. 30, 1917. 

OFFICE : Eligibility of women physicians for appointment in the Officers' 
Reserve Corps. 

It is not allowable by law to appoint female physicians to military 
office in the medical section of the Officers' Reserve Corps of the 
Army. The provisions of the national defense act (39 Stat. 166) 
should be construed in connection with other legislation on the sub- 
ject, which contemplates that officers and soldiers of the military 
service should be males who are physically fit for the varying duties 
incident to the military service. Women physicians would not have 
the physical qualifications which would be required for the perform- 
ance of all duties which mav be required of a medical officer. 

Ops. J. A. G. 64-012, Aug. 30, 1917. 

PAY AND ALLOWANCES: Mileage of officers on camp-inspection duty. 

Officers engaged in the inspection of camp sites may lawfully claim 
mileage for travel performed under competent orders from railroad 
stations to camp sites and return to railroad stations. 

Ops. J. A. G. 94-210, Aug. 30, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 125 

APPROPRIATIONS: Installation of elevators in an existing building. 

The installation of elevators in a quartermaster depot does not fall 
within the restrictions of section 1136, Revised Statutes, regarding 
the construction of buildings of a permanent character. The sec- 
tion has no application to repairs or to substantial improvements 
The appropriation " Barracks and quarters " is available for the 
installation of these elevators. 

Ops J. A. G. 5-245.1, Aug. 31, 1917. 

ARMY: Pay and allowances; Grades of mess sergeant, supply sergeant, 
and mechanic in supply companies organized under section 2 of selec- 
tive draft act. 

The provisions of section 2 of the selective draft act (40 Stat. 76, 
77) authorizing the organization and officering of special and tech- 
nical troops confers upon the President authority to adopt for the 
purpose of the organization of such troops any grade known to any 
branch of the Army with the pay and allowances of that grade, but 
does not authorize the President to adopt one grade and attach 
thereto the pay and allowances of another grade. Hence the Presi- 
dent may provide, for the supply companies to be organized, a mess 
sergeant with the pay and allowances of, say, a supply sergeant of 
Infantry; and a mechanic with the pay and allowances of, say, a 
mechanic of Field Artillery. 

Ops. J. A. G. 6-200, Aug. 31, 1917. 

MILITARY INSTRUCTION: Detail of reserve officers as instructors at 
schools and colleges. 

Members of the Officers' Reserve Corps and officers of the National 
Army, as such, can not legally be detailed as military instructors at 
schools and colleges, since it is clear from the language of section 45 
of the national defense act of June 3, 1916 (39 Stat. 166, 192) that 
only active or retired officers of the Regular Army can be so 
detailed. 

Ops. J. A. G. 56-314, Aug. 31, 1917. 

OFFICE: Rank; Promotions to fill temporary vacancies in the Regular 
Army. 

Promotions to vacancies in the Regular Army caused by the ap- 
pointment of officers thereof to higher grades in forces other than 
the Regular Army should be made by promotion, according to sen- 
iority, of officers who at the date of such vacancies are serving 
under commissions in the next lower grade of the arm, staff corps, or 
department in which the vacancies occur. 

Ops. J. A. G. 82-121, Sept. 4, 1917. 

PUBLIC PROPERTY : Sale of stores to crews of Army transports. 

The Secretary of War may by regulation authorize the procure- 
ment and sale to members of crews on transports of supplies neces- 
sary for their comfort and welfare during a voyage, the payment 
therefor to be deducted from their pay when due. 

Ops. J. A. G. 94-124, Sept. 7, 1917. ' 

PUBLIC PROPERTY: Transfer of surplus spruce lumber to allied Gov- 
ernments. 

The transfer of surplus spruce lumber by this Government to the 
allied Governments at war with Germany on the basis of reimburse- 



126 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

ment of the cost of the same should not be regarded as a sale within 
the usual meaning of the term, and hence does not come within the 
provisions of section 1241, Revised Statutes. 
Ops. J A. G. 76-011.1, Sept. 10, 1917. 

APPROPRIATIONS : Damage to railroad equipment on Government tracks 
at cantonments, etc. 

The appropriation " Transportation of the Army and its supplies " 
(40 Stat. 40, 53) is available for expenses of repairing railroad equip- 
ment damaged on Government tracks at Army cantonments and other 
military stations while in the possession of and operated by the Gov- 
ernment. 

Ops. J. A. G. 5-247, Sept. 11, 1917. 

ACCOUNTS: Examination and settlement of accounts in Prance. 

The examination and settlement of money and property accounts 
in France are lawful. 

Ops J. A. G. 78-380, Sept. 14, 1917. 

CONTRACTS: Compulsory orders. 

Under section 120 of the national defense act (39 Stat. 166, 213) 
the mere placing of an order for the supplies or materials required is 
sufficient without the execution of a formal contract therefor. No ad- 
vertising for bids in any form whatever or filing of bids is necessary. 
Revised Statutes, section 3744, and Army Regulations 563, do not ap- 
ply to such contracts. 

Ops. J. A. G. 76-340, Sept. 15, 1917. 

ARMY: Organization. 

There is but one Army of the United States, and every organiza- 
tion, bureau, officer, and man in the military service is a part of it. 
Transfers of enlisted personnel from one force to another, in the 
sense of absolute incorporation in the force to which transferred, is 
permissible under the law. 

Ops. J. A. G. 6-200, Sept. 17, 1917. 

ALIENS: Enforcement of Belgian conscription law in the United States. 

Under the act of May 7, 1917 (40 Stat. 39), amending section 10 
of the Federal Penal Code, the procuring of enlistments in the 
United States for foreign armies is permitted to those countries at 
war with a country with which the United States is at war, provided 
such enlistments are obtained under regulations prescribed by the 
Secretary of War. This statute can not, consistently with the prin- 
ciple of State sovereignty, be construed to permit any procedure 
by a foreign government in this country beyond steps to procure 
voluntary enlistments. 

Ops. J. A. G. 34-007, Sept. 18, 1917. 

RANK: Inclusion of service in District of Columbia Militia as service in 
determining relative rank. 

Service as a commissioned officer of the National Guard of the 
District of Columbia, not rendered to the United States under a call 
of draft for Federal service, can not be included as service for the 
determination of relative rank. 

Ops. J. A. G. 82-211, Sept. 18, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OP ARMY. 127 

TERRITORIES: Authority of Alaska Road Commission to delegate its 
functions. 

The authority of the Board of Road Commissioners for Alaksa to 
approve and certify vouchers for payment can not be delegated, 
even with the approval of the Secretary of War, for the reason 
that the statute establishing said board specifically ^requires ex- 
penditure of the road and trail portion of the " Alaska fund " (33 
Stat. 616) upon vouchers approved and certified bv said board. 

Ops. J. A. G. 92-160, Sept. 18, 1917. 

DISCHARGE : Effect of illegal discharge. 

An enlisted man in the National Guard duly signed the Federal 
enlistment contract provided by section 70, national defense act 
(39 Stat. 166, 201). Thereafter and upon the completion of three 
years of service he was discharged, but not in accordance with the 
requirements of law. Held, that such discharge is illegal and not 
binding on the Government. 

Ops. J. A. G. 58-052, Sept. 21, 1917. 

UNIFORM: Army field clerks and field clerks, Quartermaster Corps. 

While Army field clerks and field clerks, Quartermaster Corps, 
are officers in the Military Establishment they are not officers of the 
Army in the sense that they are permitted to wear the uniform of 
the officer as provided by the terms of section 125 of the national 
defense act (39 Stat. 166, 216). By the proviso contained in said sec- 
tion the Secretary of War may issue orders designating them as being 
entitled to wear the uniform of the United States Army and pre- 
scribing an appropriate and distinguishing mark. They are not 
entitled to have their uniforms issued to them by the Government 
as is done in the case of enlisted men, but are required to purchase 
them individually. 

Ops. J. A. G. 96-140, Sept. 22, 1917. 

CLAIMS: Loss by Government of private mount and horse equipment of 
officer. 

An officer, temporarily assigned to mustering duty, on March 21, 
1917, turned over to a camp quartermaster for safe keeping his 
private mount, saddle, blankets, etc. Three months later, when he 
reclaimed the horse and equipment, they were not to be found, but 
apparently had been erroneously issued by the quartermaster to 
some organization. Held: (1) the Secretary of War may lawfully 
grant special authority for the purchase of this horse at a valuation 
to be determined by a board of officers, subject to the provision of 
.Army Regulations 1095 prohibiting the payment of a greater sum 
for an officer's horse than the average price paid by the Government 
for horses for the mounted service during the preceding fiscal year; 
(2) the loss of the saddle, blankets, etc., does not fall within the pro- 
visions of the act of March 3, 1885 (23 Stat, 350), providing for the 
reimbursement of officers and enlisted men for the value of private 
property lost or destroyed in the military service. 

Ops. J. A. G. 94-On; Sept. 26, 1917. 

PAY AND ALLOWANCES : Private mounts of reserve officers. 

Only those reserve officers who had acquired private mounts 
while in the service and prior to the receipt by them of General 



128 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OP ARMY. 

Orders, No. 113, War Department, 1917, are entitled to have such 
mounts shipped and maintained at public expense. 
Ops. J. A. G. 94-011, Sept. 27, 1917. 

DISCIPLINE :Right of accused to testify as witness or to make unsworn 
statement. 

The accused may, at his option, be sworn and take the stand as a 
witness, but in so doing he occupies no exceptional status and be- 
comes subject to cross-examination, like any other witness. The 
accused may make an unsworn written or verbal statement. The 
making of such an unsworn statement does not subject the accused 
to cross-examination. 

Ops. J. A. G. 30-^25, Sept. 28, 1917. 

PAY AND ALLOWANCES: Stoppage of pay to satisfy indebtedness for 
alimony. 

There is no statute or Army regulation authorizing the stoppage 
of a soldier's pay to satisfv a claim for alimony. 
Ops. J. A. G. 74-111.3, Oct. 2, 1917. 

ALIENS : Naturalization of members of National Guard. 

The provisions of section 2166, Revised Statutes, regarding nat- 
uralization based on military service in the Armies of the United 
States do not include service in the militia when in the service of 
the United States. 

Ops. J. A. G. 4-500, Oct. 4, 1917. 

PAY AND ALLOWANCES: Commutation of quarters and rations of fe- 
male nurses on duty in the field. 

Female nurses on duty in the field are not entitled to commuta- 
tion of quarters when tent quarters are available. They are entitled 
to commutation of rations at the rate of $1 per day only in the 
event that rations in kind can not be economically issued. If such 
rations in kind can be so furnished, they are entitled to commutation 
of rations at the rate of 40 cents per day. 

Ops. J. A. G. 6-227.2, Oct. 4, 1917. 

PAY AND ALLOWANCES: Stoppage of pay for damages to property, 
effect upon, where trial by court-martial results in acquittal. 

The findings of a board of officers appointed to investigate and 
fix the amount of damages to a Government motor car in assessing 
the amount of the damages against a soldier, should not be set aside 
merely because the soldier was thereafter tried by court-martial for 
acts connected with such damages to the motor car and was acquitted 
therefor. 

Ops. J. A. G. 80-010, Oct. 4, 1917. 

INSIGNIA OF MERIT: Unauthorized wearing of service ribbons. 

The unauthorized wearing by civilians of campaign badges is made 
unlawful by section 125 of the national defense act, (39 Stat. 166, 
216.) 

There is no statute forbidding their unauthorized use by officers 
or enlisted men, but such persons may be subjected to disciplinary 
action. 

Ops. J. A. G. 46-300, Oct. 5, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENEEAL OF ARMY. 129 ' 

OFFICE: Pay and allowances; De facto officer rendering services while 
awaiting result of physical examination. 

Payment can not be legally made for services rendered by a civilian 
physician as a medical officer for the period between the time of his 
appointment and his subsequent notification that he had failed to 
pass his physical examination, since he was simply a de facto officer 
during such period. It is immaterial that the said notification was 
delayed through oversight on the part of the military authorities, 
and that the appointee, having in the meantime been ordered to 
service, rendered such services in good faith. 

Ops. J. A. G. 58-700, Oct. 5, 1917. 

AUTOPSY: Right to perform; Oath of enlistment not required of drafted 
men. 

A division surgeon has the legal right to perform an autopsy 
in all cases of death of officers and enlisted men, including drafted 
men, if there is a sound military reason therefor. 

Drafted men need not and ought not to be sworn into the 
service. 

Ops. J. A. G. 6-227.6, Oct. 6, 1917. 

MEDICAL TREATMENT : Legality of requirements as to vaccination and 
inoculation in the Army. 

The Secretary of War may take, and it is his duty to take, such 
means to preserve the health of the Army as medical science con- 
siders reasonably necessary and desirable. Hence, individual objec- 
tions to vaccination and inoculation should be disregarded. 

Ops. J. A. G. 6-227.6, Oct. 6, 1917. 

DESERTION: Administrative determination that escaped garrison pris- 
oner is a deserter. 

For the purpose of securing his apprehension it is competent for 
the military authorities to determine administratively that an escaped 
garrison prisoner is a deserter and to offer and pay the reward of 
$50 for his apprehension and return. It is immaterial to this ques- 
tion whether or not he is thereafter tried for desertion. 

Ops. J. A. G. 26-240, Oct. 8, 1917. 

OFFICE III Ale. 

Except as regards the Officers' Reserve Corps, veterinarians, and 
promotion from the ranks, persons not citizens of the United States 
may lawfully be commissioned officers of the Army of the United 
States. 

Ops. J. A. G. 64-213.1, Oct. 13, 1917. 

ARTICLES OF WAR LXXII H. 

The auxiliary remount depots at the several camps are subject to 
the court-martial jurisdiction of the commanding officers of the de- 
partment within the territorial limits of which such camps may be 
located. General Orders, No. 96, W. D., July 20, 1917, amending para- 
graph 191, A. R., does not withdraw them from such jurisdiction. 

Ops. J. A. G. 30-320, Oct. 16, 1917. 

151738—20 9 



130 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 

ENLISTMENT I A: Army II; War I C. 

The act of July 24, 1917, authorizing the President to increase 
temporarily the Signal Corps of the Army, does not empower him 
to recruit Signal Corps regiments to assist in the work of cutting 
spruce timber in logging camps, to be used in airplane construction. 
If other means of obtaining the necessary materials had failed, the 
President, as Commander in Chief, would have power to cause the 
work to be done directly by the military forces. 

Ops. J. A. G. 6-020, Oct 19, 1917. 

ALIEN ENEMIES: Prohibited zones. 

A citizen of Germany who is an enlisted man in the Army of the 
United States is not forbidden by the President's proclamation of 
April 6, 1917, to go within one-half mile of any fort, etc., when 
ordered to do so bv his superiors. 

Ops. J. A. G. 99-211, Oct, 26, 1917. 

SIGNAL CORPS : Rating of junior military aviator. 

Section 6 of the act of July 21, 1917 (40 Stat. 213, 211), provides 
that no person shall receive the rating of military aviator until he 
shall have served creditably for three years as an aviation officer 
with the rating of a junior military aviator, except that in time of 
war any officei'or enlisted man who especially distinguishes himself 
in active service may, upon recommendation of the Chief Signal 
Officer of the Army, be rated as a military aviator without regard to 
examination or to length of service. The service referred to is serv- 
ice in the forces of the United States, and service in the Army of any 
other nation can not be made the basis of the rating of military 
aviator. 

Ops. J. A. G. 72-181, Oct. 26, 1917. 

SELECTIVE-DRAFT ACT: Intoxicating liquors; Sale of intoxicating 
liquors within 5-mile zones and to persons in military service. 

Under the provisions of section 12 of the selective-draft act of 
May 18, 1917 (40 Stat, 76, 82), and the regulations made by the Presi- 
dent thereunder, respecting the prohibition of intoxicating liquors, 
violations of such law when committed by civilians are civil offenses 
and should be brought to the attention of the local United States 
attorney with a request that such offenders be prosecuted, violations 
by persons subject to military law should be made the subject of 
disciplinary action either by trial by court-martial under article of 
war 96 or by other appropriate means. 

Said section 12 legislates for three respective territorial sections : 
(1) Territory within 5 miles of military camps exclusive of that 
portion of cities or towns which is more than one-half mile from 
any portion of such camps; (2) territory coextensive with military 
stations, cantonments, camps, forts, posts, officers' and enlisted men's 
clubs being used for military purposes; (3) all territory within the 
jurisdiction of the United States. 

Military camps within the contemplation of section 12, defined* 
What constitutes a violation of the statute in the several localities 
above enumerated, explained. 

Ops. J. A. G. 48-100, Oct. 30, 1917. 



DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OF ARMY. 131 

ENLISTMENT I B 2 — MARINE CORPS. 

Section 7 of the act of May 18, 1917, continuing in force during 
the present emergency all enlistments in force on the date of its 
approval, applies only to the Army and does not apply to the 
Marine Corps. 

Ops. J. A. G. 28-240, Oct, 31, 1917. 

PAY AND ALLOWANCES : Right to expert rifleman's pay where Cavalry- 
is reorganized temporarily as Field Artillery. 

The requirement of paragraph 1315, Army Regulations, that the 
allowance of additional pay to an expert rifleman, sharpshooter, or 
marksman shall be payable only so long as the soldier in question 
continues to be a member of an organization armed with a rifle, 
should not be regarded as applicable to the members of Cavalry 
regiments reorganized temporarily as Field Artillery regiments; but 
the existing rifle qualifications of such men should continue for such 
time as is reasonably necessary for them to qualify in the equivalent 
rating in the Field Artillery. 

Ops. J. A. G. 242.142. Nov. 3, 1917. 

SELECTIVE-DRAFT ACT: Militia; Preservation of integrity of National 
Guard organization called into Federal service. 

The War Department is under no obligation to preserve the integ- 
rity of the National Guard units drafted into the Federal service. 
The National Guard element of the Army of the United States is not 
to be distinguished from any other composite element thereof, and, 
with certain exceptions as to certain officers, all members of the 
Army of the United States are upon the same plane, under the same 
legal obligation, and have the same legal duties. During the war 
there is but one Army, the Army of the United States, and every 
organization, bureau, officer, and man in the military service is a 
part of it. Accordingly, members of the Army of the United States 
drafted therein from coast artillery organizations of the National 
Guard have no more legal connection with the Coast Artillery than 
with any other branch of the service, and they may be assigned to 
any branch of the service and organized and officered as the Presi- 
dent sees fit. 

Ops. J. A. G. 322.7, Nov. 3, 1917. 

PAY AND ALLOWANCES: Second-enlistment pay after service in Philip- 
pine Scouts. 

Enlisted service in the Philippine Scouts entitles a soldier to sec- 
ond-enlistment pav upon enlistment in the Regular Army. 
Ops. J. A. G. 242.121, Nov. 20, 1917. 

APPROPRIATIONS: Emergency printing procured from a commercial 
printing company. 

Owing to very slow delivery of work by the Government Printing 
Office, the gun division, office of the Chief of Ordnance, informally 
procured from a commercial printing establishment a supply of 
paper printed to order at a cost of $224. The bill may be paid upon 
approval of the order and the voucher by the Secretary of War, pay- 
ment to be made from the appropriation " Contingent expenses of 
the War Department." 

Ops. J. A. G. 486.4, Dec. 4, 1917. 



132 DIGEST OF OPINIONS JUDGE ADVOCATE GENERAL OE ARMY. 

RETIREMENT: Retirement of provisional second lieutenant. 

There is no authority in law for the retirement of a provisional 
second lieutenant found incapacitated for service by reason of a dis- 
ability incurred in line of duty. 

Ops. J. A. G. 210.85, Dec. 6, 1917. 

DISCIPLINE: Disloyal officers and soldiers. 

In all cases where officers and soldiers in the Army of the United 
States demonstrate by their conduct or speech disloyalty to the Gov- 
ernment of the United States and sympathy with its enemies the fol- 
lowing- general policy is recommended : 

(a) In the case of any officer or soldier who has by his speech or 
conduct demonstrated an attitude or committed an act of disloyalty, 
it is recommended that he be brought to trial by a general court- 
martial as promptly as possible, whenever the necessary data can be 
obtained as a basis for charges. 

(b) If suitable data for such charges can not be obtained, it is 
recommended that a suspected officer be dismissed or discharged 
under the authority of the particular statute which may apply ir 
his case, and that a suspected enlisted man be discharged from the 
service. 

(<?) If any such officer so dismissed or discharged, or any such en- 
listed man so discharged, from the service be found to be an alien 
enemy of the United States it is recommended that he be promptly 
interned for the period of the war, and that if he be a citizen of the 
United States or an alien, not an alien enemy, that he be promptly 
reported to the civil authorities for surveillance and for such action 
as may be found possible to take against him under the authority of 
existing law or of any statute hereafter enacted by Congress. 

Ops. J. A. G. 250.45, Dec. 8, 1917. 

DESERTION: Discharge; Disposition of alleged deserter. 

The commanding general of a tactical division, to whose command 
an alleged deserter has been delivered, should have a physical ex- 
amination made of the soldier. If such examination shows him to 
be fit for service, and if in the judgment of such commanding gen- 
eral the interests of the Goverment so dictate, the soldier may be 
returned to his company commander, whether or not a request of 
such return has been made by his company commander. (A. R. 126.) 
When an alleged deserter, returned to military control, is found 
to be physically unfit for service, if he refuses to admit desertion, 
and if it be deemed inadvisable to try him for his alleged offenses, 
application should be made to the Secretary of War for authority 
to discharge him without trial. (A. R. 126.) A soldier so discharged 
should be given the certificate of discharge provided for in subdi- 
vision 3 of Army Regulations 150. 

Ops. J. A. G."319.i2, Dec. 17, 1917. 

APPROPRIATIONS : Heat and light for buildings of Knights of Columbus. 

There is no statutory authority under which fuel and light can 
be furnished by the Government to the buildings of the Knights 
of Columbus at the cantonments, and the War Department has no 
authority to permit the disposition of public property except as 
provided for by Congress. 

Ops. J. A. G. 680.32, Dec. 19, 1917 



INDEX. 

[References are to pages.] 

Absence Without Leave: Page. 

Absence after revocation of furlough is 6 

Expense of returning soldiers 98 

Failure to join organization after discharge from hospital 122 

Accidents. See Claims. 

Accounts: 

Examination and settlement of accounts in France 126 

Accused: 

Effect of irregularities of proceedings upon rights of 80 

Right to testify as witness or make unsworn statement 128 

Active Duty. See Duty. 

A DJUTANTS : 

Oaths not administered by assistant to department 119 

Advertising: 

Designation of newspapers for 120 

Affidavits: 

For deferred classification of employee 1 04 

Age Limit. See Chaplains; Draft; Officers. 

Aids. See Staff duty. 

Aircraft: 

Power of President during war to prevent flying of 08 

Signal Corps regiments to assist in cutting spruce for 130 

Alaska: 

Board of road commissioners, delegation of authority 127 

Alcoholic Liquors. See. Intoxicants. 
Aliens: 

( !laim for exemption by nondeclarant 96 

Declarant aliens subject to draft 97 

Discharge to enlist in Army of own country not authorized 55 

Enemy — 

Minor enlisted in National Guard 74 

Lights of, when enlisted in Army of United States 57 

Zones of prohibition 130 

Enlistments in United States for foreign armies 126 

Naturalization of members of National Guard 128 

Alimony: 

Stoppage of pay to satisfy claim for 128 

Allies: 

Munitions furnished through requisitioning power of United States 113 

Allowances. See Pay; Pay and allowances; Quarters; Rations; Subsistence. 
American Expeditionary Forces: 

Red Cross officials under military j urisdiction when with. 98 

American National Red Cross. See Red Cross. 
Apprehension of Deserters. See Reward. 

133 



134 INDEX. 

Appropriations: 

Barracks and quarters — l'age. 

Installation of elevators in quartermaster depi >1 125 

Rental oi building in Manila for soldiers on leave 121 

Contingencies of the Army — 

Expense of returning soldier absent without leave 98 

Not available for suppression of vice 77 

Contingencies, headquarters of military dept. — 

Purchase of envelopes for headquarters of military departments 12 

Damages and loss of private property — 

Claims for damages due to training cam]) work 40 

Damages caused by motor truck not used in movement of troops 79 

Medical and hospital department — 

< "ivilian labor for police duty at hospital 77 

Treatment of contractor's employees 48 

Treatment of insane soldiers in private instil utionp 32 

Printing and binding — 

Work done by commercial concerns in time of war 20. 1 :ll 

Quartermaster Corps — 

Civilian labor for police duty at hospitals 77 

Heating and lighting fixtures in Y. M. C. A. buildings 77 

Quartermaster Corps: Incidental expenses- 
Expenses < i reporters and witnesses 123 

Telegrams sent by Civil Service Commission for Ordnance Dept 122 

Transportation of the Army and its supplies — 

Repair ol railroad equipment damaged on Government tracks 120 

Army: 

See also specific title. 

Composition and organization 53, 77 

Drafted forces not part of Regular 121 

Employment of, to aid civil authority 5 : 

Increase in enlisted personnel of Regular 110 

Army Field Clerks. See Field clerks. 
Army Medical School: 

Rental of building for use of 120 

Army Nurse Corps: 

Commutations of quarters and subsistence for 82, 128 

Commutation of rations while on duty in France 118 

Articles of War: 

Construction of Article of War 45 45 

( '(instruction of Article of War 48 54, 98 

Offenses prior to March 1, 1917, tried under old 09 

Assistants. See Names of offices concerned. 
Authorities. See Civil authorities: Courts-martial. 
Authority: 

Delegation of — 

Alaska Road Commission -. 127 

Secretary of War to act on reports of surveys 15 

To employ Army of United States to suppress violence 53 

Automobiles. See Motor vehicles. 
Autopsy: 

Division surgeon has right to perform 129 

Aviation Section. See Signal Corps: Signal Officers' Reserve Corps. 



INDEX. 135 

Aviators: 

Junior military — rage. 

( laptain assigned to active duty as 68 

Rating of 130 

Pay of flying cadets 103 

Badges: 

See also Decorations of honor. 

Issue of campaign badges to members of training camps 37 

Baggage: 

Transportation — 

Captain of Philippine Scouts retired as master signal electrician 36 

Officer order to duty in held 103 

Balloonists: 

Extra pay for aerial flights 5 

Ham is: 

Competition with civilian musicians 53, L20 

Detail of mess sergeants to < 'oast Artillery bands 11 

Barracks. See Quarters. 
Hkverac.es. See Intoxicants. 
Bids. Set Contracts. 
Boards: 
Draft- 
Correction of rulings of, when men were erroneously certified 81 

Finality of decisions of 71, 81 

Not authorized to compel attendance of witnesses 81 

Reopening of case after induction 81 

Efficiency — 

Expenses of reporters and witnesses 123 

Examining — 

Expenses of reporters and witnesses 123 

Signal Corps Reserve Officers attached to Aviation Section 85 

Bonds: 

Effect of failure of contractor to furnish 55 

Reserve officers assigned as disbursing officers required to give 29 

Bounties. See Pay and allowances — reenlistment. 
Buildings. See Leases; Public property. 
Cables: 

Censorship 117 

Cadets. See Aviators; Coast Guard; United States Military Academy. 
Call into Federal Service. See National Guard. 
Campaign Badges. See Badges. 
Camps: 

Campaign badges for members of reserve officers' training 37 

Civilian employee's pay while attending reserve officers' training 42 

Claims for damages to private property due to work at training 46 

Defined 58 

Pay and allowances of men in 61 

Regulations prohibiting intoxicants applicable to Porto Rico 57 

Service can not be counted in computing longevity pay ' 86 

War risk insurance for members of training 106 

Canal Zone: 

Censorship of mail in 88 

Transportation for troops on west side of 116 



136 INDEX. 

Cantonments: Page. 

Options for renewal of leases from year to year 122 

Captured Property: 

Supplies used for subsistence of prisoners of war 20 

Cars. See Motor vehicles. 

Cavalry: 

Regiments organized provisionally as Field Artillery 88, 98 

Censorship: 

Cable dispatches 117 

Mail in Canal Zone 88 

Chaplains: 

Eligibility of Christian Science readers 54 

Qualifications for appointment as 114 

Charges. See Claims; Contracts; specific names of crimes. 

China : 

Subjects may not enlist in Medical Enlisted Reserve Corps 82 

Christian Science Church: 

Readers eligible to appointment as chaplains 54 

Citizenship: 

Aliens lose American citizenship upon return to native country 115 

Expatriation after enactment of draft act 115 

Not necessary for enlistment in United States Army in time of war 57 

Restoration to citizens enlisted in foreign armies 57 

Civil Authorities: 

Application of State laws to Federal operations 68 

Apprehension and delivery of deserters by 79 

Delivery of soldier in time of war to 54 

Employment of Army to aid 53 

Expenses for returning soldier absent without leave 98 

Jurisdiction over alien minor enlisted in National Guard 74 

Jurisdiction over capital crimes in time of war 95 

Procedure where soldier is necessary witness 99 

Right to hold in arrest persons in military service 78 

Civilian Employees: 

Medical and hospital treatment 42 

Pay. See Pay. 

Resignation without due notice 78 

Right to wear uniform 54 

Civilians. See Aliens; Citizenship; Civil authorities; Civilian employees; 
Pay. 

Claims: 

Commutation of heat and light and quarters. See Quarters. 

Commutation of rations. See Rations. v 

Contracts. See Contracts. 

Damages caused by motor truck not used in movement of troops 79 

Damages to private property due to training camp work 46 

Losses — 

Household goods of officer destroyed by fire in shipment 51 

Officers' mount while in military service 26, 127 

Private property while in military service 21, 35 

Stoppage of pay for damage to Government motor car 128 

Subsistence. See Subsistence. 

Traveling expenses. See Mileage; Traveling expenses. 

Clergymen. See Chaplains. 



INDEX. 137 

€lerks. See Civilian employees; Field clerks. 

Clothing: rape. 

Allowance for members of National Guard 18 

Loss of civilian clothing of officer 21 

Uniform. See Uniform. 

Coast Artillery Corps: 

Grade of mess sergeant in 11 

Gunner loses rating when transferred to Field Artillery '. 86 

Coast Guard: 

Cadets and cadet engineers not entitled to war-risk insurance 106 

Colleges. See Educational institutions; Reserve Officers' Training Corps. 

Command: 

Commanding officer of base hospital may convene courts-martial 99 

Jurisdiction of division commanders 55 

Right of commanding officer 85 

Commandeering. See Requisition. 

Commander in Chief of the Army. See President of the United States. 

Commissions. See Officers; Rank. 

Commutation of Heat and Light. See Quarters. 

Commutation of Quarters. See Quarters. 

Commutation of Rations. See Rations. 

Commutation of Subsistence. See Subsistence. 

Company Funds. .See Funds. 

Compensation. See Claims; Line of duty; Pay; Reward; Transportation; 
Traveling expenses. 

Compulsory Orders: 

For supplies 126 

Condemnation. See Requisition. 

Conduct Unbecoming an Officer: 

Drunkenness at a military hop 107 

Confinement: 

Crimes which justify sentence of 109 

Sentence begins on date of order publishing case 118 

Conscientious Objectors: 

Enlistment 56 

Conscription. See Aliens; Draft. 

Contingent Funds. See Appropriations. 

Continuous Service Pay. See Pay and allowances. 

Contract Surgeons: 

Not entitled to war risk insurance 107 

Contracts: 

Advance payment 121 

Application of eight-hour law to contracts for supplies bought in open 

market 46, 56 

Application of State laws to Federal operations 68 

By officer or employee with Government 79 

Cancellation — 

For relief of contractor not authorized 37, 119 

Compulsory orders for supplies 126 

Construction of, when containing provision for estimated quantities 25 

Correction of error in bid 15 

Cost plus — 

Percentage basis 15 

Effect of failure of contractor to furnish bond 55 



138 IXDEX. 

Contracts — Continued. rage. 

Eight-hour law not applicable to artillery equipment 124 

Emergency purchases of military supplies 79 

Labor. See Eight-hour law ; Pay. 
Leases. See Leases. 
Modification — 

For relief of contractor not authorized 37, 119 

Settlement of claim for unliquidated damages 118 

Unauthorized contracts by National Guard for horses and mules 117 

Conviction. See Courts-martial; also specific name of offense. 
Corporals : 

Lance corporal is not a noncommissioned officer 53 

Correspondence. See Censorship: Mail. 
Courts. See Civil authorities. 
Courts-martial: 

Convening authority when commanding officer is accuser 80 

Confirming authority when officer is sentenced to dismissal 80 

Effect of irregularities upon proceedings 80 

Findings — 

Reviewing authority may disapprove 108 

Jurisdiction — 

Auxiliary remount depots 1 "_'!» 

( 'apital offenses in time of war 95 

( 'ivilians on Army transport 110 

Offenses committed by National Guardsmen prior to draft 119 

Offenses committed prior to enlistment 100 

Prisoners of war 100 

Members — 

Testimony of 95 

Offenses prior to March 1, 1917, tried under old Articles of War 69 

Place of trial determined by expense of securing witnesses 31 

Records — 

Amendment of 94 

Procedure where sentence is improper in form 109 

Revision invalid when member of court not qualified 94 

Revision invalidated by introduction of new evidence 108 

Reviewing authority. See Reviewing authority. 
Sentences. See Sentences. 
Special — 

Power of commanding officer of base hospital to convene 99 

Summary — 

Limitation of sentences by 78 

Power of commanding officer of base hospital to convene 99 

Reduction of noncommissioned officer by 46 

Witnesses. See Witnesses. 
Cow: 

Expenditure of ration savings for feed for 40 

Crimes. See Civil authorities; Confinement: Courts-martial; specific name 

of offense. 
Cross-Examination. See Accused. 

Custody. See Civil authorities; Confinement; Courts-martial. 
Damages. See Claims; Contracts. 
Death. See Deceased persons; Line of duty. 



INDEX. 131) 

Deceased Persons: 

Burial expenses — Page. 

Cadets of United States Military Academy 1 1 6 

Decorations of Honor: 
See also Badges. 
President as commander in chief may authorize 57 

De Facto Officers. See Pay and allowances. 

Defense. See Accused; Evidence; specific name of offense. 

Deferred Classification. See Draft. 

Demotion. See Rank. 

Dental Corps: 

Appointees from standard dental colleges 30 

Basis of organization in Officers' Reserve Corps 77 

Qualifications for appointment and promotion in 102 

Dental Reserve Corps: 

Officers commissioned with grades and percentages of Medical Corps 77 

Department Commanders. See Command; Courts-martial. 

Dependency: 

Aid to dependent families of enlisted men of National Guard and Regular 

Army H 

Depositions: 

Fees for taking 79 

Use of. in desertion cases in time of war not authorized 52 

Witnesses in military service 99 

Desertion: 

Administrative determination that escaped garrison prisoner is deserter.. 129 

Apprehension and delivery of deserters by civil authorities. 79 

Arrest of deserters from National Guard in Federal service 5 

Disposition of alleged deserter 132 

Failure to respond to draft constitutes 56 

Interpretation of Article of War 39 in trials for 22 

Sentence for, when committed in time of peace 110 

Statute of limitation affecting 22. 79 

Trials held in place where least expensive for witnesses 31 

Detail. See Duty; specific name of organization or duty. 

Disability: 

See also Discharge; Line of duty. 

Injuries not resulting from willful neglect or immoral conduct 83 

Retirement of provisional second lieutenant 132 

Disbursing Officers: 

Bonds may be required from reserve officers 29 

Pay of de facto property and 38 

Discharge: 

Dishonorable — 

When authorized 44, 69, 109 

Dismissal of officers — 

Interpretation of Article of War 48 54, 98 

President as confirming authority 80 

Temporary and provisional 84, 101 

Drafted alien not discharged to enlist in Army of own country 55 

Drafted man upon certificate of exemption 81 

Drafted minors 104 

Effect of illegal discharge 127 

Enlisted man of regular Army to accept temporary commission 87 



140 INDEX. 

Discharge — Continued. Page. 

National Guard officers after draft 59, 99 

National Guard Reserve — 

Enlistment in National Guard after 8 

Pay affected. See Pay and allowances. 

Provisional second lieutenant prior to expiration of statutory period 9 

Rank following discharge. See Rank. 

Rejection of drafted man as physically unfit subsequent to induction 81 

Traveling expenses — 

Enlisted man discharged to accept commission 43 

Regular Army reservist 94 

Soldier convicted by civil court 43 

Under proper name when service was under assumed name 16 

Upon expiration of enlistment subsequent to May 18, 1917 38 

Disciplinary Barracks: 

Vocational training at 117 

Discipline. See Courts-martial; Prisoners; Rank; Sentences; name of specific 
offense . 

Disease. See Medical treatment. 

Disloyalty : 

Procedure for treatment of disloyal officers and enlisted men 132 

Dismissal. See Discharge. 

Distinguished Service Medals: 

Authority of President to provide for *...". 57 

Division Commanders: 

Jurisdiction of 55 

Draft: 

See also Desertion: National Guard. 

Applicable to Porto Rico 115 

Boards. See Boards. 

Claim for exemption by nondeclarant aliens 96 

Declarant aliens subject to 97 

Discharge of aliens subject to '. , 55 

Discharge of drafted minors 104 

Discharge of National Guard officers after 59 

Drafted forces not part of Regular Army 121 

Execution of affidavit to secure deferred classification for employee 104 

Exemptions 73 

Expatriation after enactment of draft act 115 

Failure to respond to, constitutes desertion 56 

Honorable discharge from Regular Army does not exempt from 73 

Members of Home Guards 59 

National Guard officers 84 

Necessary expenses of National Guard after 58 

Procedure for discharge upon certificate of exemption 81 

Registration of slackers 81 

Rejection as physically unfit subsequent to induction 81 

State staff corps subject to 58 

Voluntary enlistment in Regular Army and National Guard after 116 

Drinking. See Intoxicants. 

Dry Zones. See Intoxicants. 

Duties. See Tariff. 



INDEX. 141 

Duty: 

See also Service 

Active — Page. 

Longevity pay increases tor 43 

Retired officers and enlisted men ordered to 24, 49, 122 

Extra and special denned 47 

Field— 

Allowances. See Quarters; Subsistence. 

Officer of Infantry as judge advocate with punitive expedition 6 

Flying. See Aviators; Balloonists. 
Line of duty. Sec Line of duty. 

Police duty at base hospitals by enlisted men 77 

Staff. See Staff duty. 

Educational Institutions: 

Reserve officers as instructors at 125 

Eight-Hour Law: 

Application to contracts for supplies bought in open market 46, 50 

Construction of Ohio River dam 124 

Contracts for horse equipment and artillery supplies 124 

Contracts for ordnance supplies 124 

Extra pay for overtime work by mechanics employed by Government. ... 55 
Suspension of in cases of emergency 80 

Elevators: 

Installation in quartermaster depot 125 

Employees: 

See also Civilian employees; Eight-hour law. 

Medical treatment for contractor's employees on cantonment construction. 48 

( 'i unpetition of enlisted men with civilians 53 

Engineer Corps: 

Draftsmen not entitled to war-risk insurance 100 

Field clerks not entitled to war-risk insurance 106 

Grade of first-class privates for reservists called to active duty f) 

Enlisted Men: 

Absence. See Absence without leave. 

Aid to dependent families of men in National Guard and Regular Army. . 11 

Competition with civilians in employment 53 

Detail as mess sergeants 117 

Discharge. See Discharge. 
Duty. See Duty. 

Heat and light allowance when assigned to public quarters 18 

Insane. See Insane persons. 

Making good time lost by 16 

Of all components interchangeable 77 

Pay. See Pay and allowances. 
Rank. See Rank. 

Service which may be counted for retirement 104 

Transfer from one force to another 126 

Travel. See Traveling expenses. 

Enlisted Reserve Corps: 

Appointment of general officers for regiments of 113 

Assigned to duty with Regular Army 113 

Member called to active duty while fatally ill 100 

Organization of railway engineer regiments 112, 113 

Pay. See Pay and allowances. 



142 INDEX. 

Enlistment: 

Aliens. See Aliens. Page. 

Conscientious objectors 50 

Continuation during emergency not applicable to Marine Corps 131 

Continuation of active service in National Guard after termination of 19 

Continued in force during war 38 

Discharge. See Discharge. 

Drafted men enlisted from date specified in notice 56 

Drafted men not required to take oath of 129 

Eligibility for Medical Enlisted Reserve Corps 82 

Failure to respond to draft constitutes desertion 56 

Field clerks in National Guard 10 

Fraudulent — 

Date of final statements when sentenced for 39 

E ff ect of 57 

Jurisdiction of courts-martial over offenses committed prior to 100 

Period — 

Effect of unauthorized furlough 73 

Furlough to Reserve upon expiration of 73 

Persons authorized to take enlistments 100 

Qualification for enlistment in National Guard 113 

Reenlistment — 

Continuous service pay upon application within three months for 30 

Deserter not eligible for 57 

During emergency 112 

Enlisted man discharged to accept temporary commission 86 

Repatriation of citizens enlisted in foreign armies 57 

Rights of alien enemy enlisted in United States Army 57 

Signal Corps, for musical purposes solely, unauthorized 57 

Voluntary enlistment in Regular Army and National Guard after draft ... L16 

Women may not enlist in Ordnance Department 82 

Envelopes: 

Franking privilege for applications for family allowances and insurance. . . 99 

Purchase of, for headquarters of military departments 12 

Equipment: 

Contracts not governed by eight hour law 124 

Issue. See names of organizations. 

Loss of officer's horse equipment 127 

Errors. See Accused; Courts-martial. 

Evidence: 

Additional — 

Revision of record invalidated by introduction of 108 

Comment upon, in open court by member 94 

Improper questioning inadmissible 69 

Use of depositions in desertion cases in time of war unauthorized 52 

Witnesses. See Witnesses. 

Examinations. See Accused; Boards; Survey. 

Exchange. See Post exchange. 

Exemption From Military Service. See Draft. 

Feed: 

Rations savings may be expended for cow 40 

Fees: 

For taking depositions , 79 

Felonies. See Specific name of offense. 



INDEX. 143 

Field Artillery: Page. 

Cavalry regiments may retain noncommissioned personnel 88 

Cavalry regiments organized provisionally as 88, 98 

Field Clerks: 
Army — 

Enlistment in National Guard 16 

Entitled to war-risk insurance 106 

Heat, light, and quarters for 103 

Not civilian employees 42 

Not entitled to increase in compensation of civilian employees 42 

Right to draw pension while serving as 13 

Service which may be counted for allowances 45, 78 

Uniforms 127 

Heat and light allowance for 17 

Hunting privilege not a right 31 

Purchase of subsistence supplies from Quartermaster's Department 31 

Quartermaster Corps — 

Enlistment in National Guard 16 

Entitled to war-risk insurance 106 

Member of Officers' Reserve Corps ordered to active duty 113 

Not civilian employees 42 

Not entitled to increase in compensation of civilian employees 42 

Uniforms 127 

Vacancy in field clerkship fdled by temporary appointment 113 

Final Statements: 

Date of, when sentenced for fraudulent enlistment 39 

Flying. See. Aviators. 

Food. See Feed; Rations; Subsistence. 

Foreign Armies: 

Enlistments in United States for 126 

Foreign Service. See Pay and allowances. 
Foreigners. See Aliens; Foreign armies. 
Forfeiture of Pay. See Pay and allowances. 
France: 

Examination and settlement of accounts in 126 

Franking Privilege. See Envelopes. 
Fuel. See Heat and light; Quarters. 
Funds: 

See also Appropriations. 
Company — 

Distribution of, of disbanded organization 101 

Distribution upon reorganization 101 

Investment in liberty bonds 57 

Furlough: 

Absence after notice of revocation of furlough is without leave 6 

Effect of unauthorized 73 

Garbage: 

Money received from sale of 104 

German Red Cross. See Red Cross, German. 
Germany: 

War declared on April 6, 1917, by United States on 37 

Gettysburg National Park: 

Regulations respecting vehicles suspected of carrying liquor 123 



144 INDEX. 

Grade. Sec "Rank. 

Guards: Page. 

Civilian labor for police duty at base hospitals 77 

Extra-duty pay for Philippine Scouts at Corregidor 123 

Gunners: 

Additional pay for enlisted men of National Guard qualified as 23 

Status after transfer from Coast Artillery to Field Artillery 86 

Heat and Light: 
See also Quarters. 

Buildings of Knights of Columbus 132 

Hostess houses of Young Women's Christian Association 77 

Young Men 's Christian Association buildings 77 

Home Guards: 

Members as individuals subject to draft 59 

Not subject to draft as members of National Guard 59 

Right to wear uniform 68 

Status of 59 

Horses: 

See also Mounts. 

Unauthorized contracts by National Guard officers for 117 

Hospitals: 

See also Insane persons; Medical treatment. 

Commutation of rations for nurses on duty in France US 

Failure to join organization after discharge from 1 22 

Pay of soldier while confined in 119 

Police duty by enlisted men, not civilians 77 

Power of commanding officer to convene courts-martial 99 

Treatment of insane soldiers in private 32 

Hostess Houses: 

Heat and light for 77 

Houses. See Hostess houses; Knights of Columbus; Quarters; Young Men's 
Christian Association. 

Hunting Privilege: 

Field clerks not entitled to 31 

Illness: 

See also Hospitals; Line of duty: Medical treatment. 

Enlisted reservist, fatally ill at time of call to service 100 

Imprisonment. See Confinement. 

Income Tax. See Taxes. 

Induction. See Draft. 

Inoculation: 

Compulsory, legal in the Army 129 

Insane Persons: 

Procedure for payment due insane soldiers 123 

Treatment of insane soldiers in private institutions 32 

Insignia of Merit: 

Distinguished service medals. See Distinguished service medals. 
Ribbons. See Ribbons. 

Insurance: 
War risk — 

Persons entitled to 106 

Interpreters: 

Corps included in headquarters organization 115 

Corps not organized as special and technical troops 115 



INDEX. 145 

Intoxicants: Page. 

Enforcement of regulations concerning - 58 

Interpretation of President's regulations 58 

Interpretation of the term "military camps" 47 

Punishment for violation of liquor regulations 95 

Regulations apply to camps in Porto Rico 57 

Regulations not applicable to permanent Army posts 82 

Revocation of licenses for violation of Federal regulations 58 

Seizure within prohibited zones 57 

Vehicles suspected of carrying liquor into Gettysburg National Park: .... 123 
Zones of prohibition for sale of 130 

Japan : 

Subjects may not enlist in Medical Enlisted Reserve Corps 82 

Judge Advocates: 

Field officer with punitive expedition on duty with organization .......... <i 

Junior Military Aviator. See Aviators. 

Jurisdiction. See Civil authorities; Courts-martial. 

Knights of Columbus: 

Heat and light for buildings of 132 

Land. See Leases. 

Larceny: 

Pinder of Government property who appropriates for own use guilty of S 

Laundries: 

Post exchanges as agents for private 82 

Leases: 

Option for renewal of leases of cantonment sites from year to year 122 

Payment of rent by Government 27 

Payment of rent in advance for lease of real estate 34 

Revocation of 7 

Liabilities. See Claims. 

Liberty Bonds: 

Allotment of soldiers' pay for purchase of 29 

Investment of company funds in 57 

Licenses: 

Revocation of, for violation of Federal regulations 58 

Lighthouse Service: 

War risk insurance for personnel of 106 

Limits of Punishment. See Sentences. 

Line of Duty: 

Death of officer while engaged in proper recreation in 7 

Death of sentry at post on railway bridge 83 

Injuries not resulting from willful neglect or immoral conduct 83 

Liquors. See Intoxicants. 

Local Draft Boards. See Boards. 

Longevity Pay. See Pay and allowances. 

Loss of Grade. See Rank. 

Lumber: 

Signal Corps regiments to assist in cutting spruce 13 

Transfer of surplus to Allies 125 

Mail: 

Censorship in Canal Zone 88 

Marine Corps: 

Continuation of enlistments during emergency not applicable to 131 

Eligibility of member for detail in Signal Corps 83 

151738—20 10 



146 INDEX. 

Marksmen: Page. 

Machine-gun battalion, pay after transfer 86 

Mechanics: 

Supply companies may include 125 

Medical Corps: 

Qualifications for appointment and promotion in 85, 102 

Medical Department: 

Detail of enlisted men as mess sergeants 117 

Medical Enlisted Reserve Corps: 

Eligibility for enlistment in 82 

Medical Reserve Corps: 

Longevity pay of members of 28 

Status of officer continuing in service after termination of commission 59 

Medical Treatment: 

Civilian employees 42 

Compulsory inoculation and vaccination in the Army 129 

Contractor's employees on cantonment construction 48 

Insane soldiers treated in private institutions 32 

Members of National Guard prior to muster into Federal service 48 

Refusal by enlisted man to submit to operation 54 

Mess. See Rations; Subsistence. 

Mess Sergeants. See Sergeants. 

Mileage: 

See also Traveling expenses. 

Members of Officers' Reserve Corps entitled to 42 

Officers of Aviation section, Signal Officers' Reserve Corps 29 

Officers on camp inspection duty 124 

Reserve officer inspecting National Guard records 87 

Military Academy. See United States Military Academy. 

Military Forces. See Army. 

Military Instruction. See Reserve Officers' Training Corps. 

Military Police. See Guards. 

Military Service. See Army; Draft; Enlistment; Enlisted men; Officers; 
names of organizations and branches of the Army. 

Military Storekeeper. See Storekeeper. 

Militia : 

See also National Guard. 

Status of members of Organized Militia in National Guard 18 

Militia Bureau: 

Status unchanged by draft of National Guard 122 

Minors: 

Discharge of drafted 1 04 

Misconduct. See Line of duty; specific name of offense. 

Motor Vehicles: 

Traffic regulation in Gettysburg National Park 123 

War revenue tax on 105 

Mounts : 

Lost while in military service 26, 127 

Maintenance at remount depot allowed to officer ordered to foreign service. 61 

Reserve officers 116. 127 

Sale by officer to Government '. 118 

Transportation of officer's 87 



INDEX. 147 

Mules: p age 

Unauthorized contracts by National Guard officers for 711 

Munitions: 

Manufacture ordered by Government and transferred to Allies 113 

National Anthem: 

Misuse of 84 

National Guard: 

Acceptance of commission in Officers' Reserve Corps vacates commission 

in 101 

Aid to dependent families of enlisted men of 11 

Arrest of deserters from National Guard in Federal service 5 

Clothing allowance 18 

Component of Army organized by direction of President 53 

Continuation of active service after expiration of enlistment 19 

Date of final statement of enlisted man sentenced for fraudulent enlistment. 39 
Discharge — 

From National Guard Reserve to enlist in 8 

Procedure for discharge of officers 99 

District of Columbia — 

Service in, for determination of relative rank 126 

Draft of officers 84 

Eligibility for appointment as property and disbursing officer 38 

Eligibility of officers for commissions in Officers' Reserve Corps 119 

Enlistment of field clerks in 16 

Enlistments continued in force during war 38 

Expenses incurred after draft, proper charge against United States 58 

Grade of wagoner not authorized for separate companies of Engineers 58 

Jurisdiction over offenses committed prior to draft into Federal service. . . 119 

Medical treatment for members prior to muster into Federal service 48 

Members of Officers' Reserve Corps ordered to duty with 98 

Members of Organized Milita in 18 

Naturalization of alien members of 128 

Officer elected to advanced grade appointed and not promoted 120 

Pay. See Pay and allowances. 

Punishment for failure of members to respond to call 19 

Qualifications for appointment as second lieutenant in Regular Army. . . . 60 

Qualifications for enlistment in 113 

Retired enlisted men commissioned in, federalized 117 

Retirement of officer of 104 

Service in determining rank in United States Army 62 

State staff corps not members of 58, 112 

Status after call into Federal service 131 

Status of Militia Bureau after draft of 122 

Veteran Corps of Artillery not part of 76 

National Guard Reserve: 

Appointment as second lieutenant after furlough to 60 

Discharge to permit enlistment in National Guard S 

Naturalization. See Aliens; Citizenship. 

Naval Militia: 

Veteran Corps of Artillery not part of 76 

Navy: 

Service for retirement includes service in 88 

Subsistence for officers in charge of naval gun crews on transports 61 



148 INDEX. 

Newspapers: Page. 

Contracts for advertising in 120 

Noncommissioned officers: 

Cavalry regiments organized as Field Artillery may retain 88 

Jurisdiction of summary court to reduce 46 

Lance corporal is not 53 

Rank of Regular Army 88 

Reenlistment of corporal of National Guard after refusal to take oath ". 39 

Status of corporal of National Guard upon reenlistment 39 

Nurses: 

See also Army Nurse Corps. 

Contract nurses not entitled to war-risk insurance 107 

War-risk insurance for male nurses of Medical Department 106 

Oath of Enlistment. See Enlistment. 
Oaths: 

Persons required to take 85 

Right of assistant to department adjutant to administer ._ 119 

Office: 

See also Command; Officers; Rank; specific name of detail or occupation. 

Acceptance of civil office by officer of National Army 84 

Officers: 

Appointment — 

Age requirements for enlisted men appointed second lieutenants 116 

Commissions in more than one component of the Army 92. 124 

Continuation in service after termination of appointment 59 

Effect of appointment to higher grade in temporary forces 102 

Eligibility for appointment after one year in National Army 60 

General officers for regiments of enlisted reservists 113 

In Medical and Dental Corps S5, 102 

In Porto Rico Regiment of Infantry 101 

National Guard officer elected to advanced grade 120 

New commissions after consolidation of departments with Quarter- 
master Corps 114 

Persons not citizens of the United States 129 

Philippine Scout officers as second lieutenants. Regular Army 114 

Qualifications for second lieutenant, Regular Army 60 

Regular Army officer in National Army .■ 105 

Reporting at designated place under orders not 59 

Time of appointing officers for service in National Army 116 

Civil office. See Office. 

Command. See Command; Rank. 

De facto. See Pay and allowances. 

Demotion. See Boards; Rank. 

Disbursing. See Disbursing officers. 

Medical. See Medical Corps; Veterinary Corps. 

Mounts. See Mounts. 

National Guard. See National Guard. 

Navy. See Navy. 

Pay. See Pay and allowances. 

Philippine Scouts. See Phillippine Scouts. 

Precedence. See Rank. 

Promotion — 

Eligibility when holding provisional commissi* n 123 

In Medical and Dental Corps 85, 102 



INDEX. 149 

Officers — Continued . 

Promotion — Continued. Page. 

In Porto Rico Regiment of Infantry 101 

National Guard officer elected to advance grade 120 

To fill vacancies in Regular Army 88, 102, 105, 125 

• Provisional. See Officers — Appointment. 
Rank. See Rank. 
Retirement. See Retirement. 
Seniority. See Rank. 
Temporary. See Officers — Appointment. 

Transfer to another component 102 

Travel. See Mileage; Traveling expenses. 
Uniform. See Uniform. 
Officers' Reserve Corps: 

Acceptance of commission by continuing in active service . . . . ^ 59 

Appointment — 

National Guard officers 119 

Regular Army officers 119 

Women physicians 124 

Disbursing officers required to give bond 29 

Effect of acceptance of commission in, by drafted National Guardsmen 101 

Eligibility of military storekeeper for higher rank in 117 

Field clerk, Quartermaster Corps, ordered to active duty 113 

Higher rank for second lieutenants, Quartermaster Corps, in 117 

Instructors at schools and colleges 125 

Mounts for members of 116 

Officer not called into active duty may not wear uniform 68 

Officer not to be assigned as assistant to junior in Regular Army 22 

Signal Corps Section comprised of two divisions 20 

Temporary duty with Regular Army 98 

Officers' Training Camps. See Camps. 
Ohio River Dam: 

Application of eight-hour law to construction of 124 

Operations. See Medical treatment. 

Order Appointing Court-martial. See Courts-martial. 

Ordnance Department: 

Women may not enlist in 82 

Overtime: 

See also Eight-hour law. 

Extra pay for employees of Medical Supply Depot 118 

Extra pay for mechanics employed by Government 55 

Panama Canal Zone. See Canal Zone. 
Pay: 

Civilian employees- 
Extra pay for overtime work for employees of medical supply depot. . . 118 

Increase in compensation 32, 41, 50 

While attending reserve officers' training camp 42 

Extra pay for overtime work by mechanics employed by Government 55 

Pay and Allowances: 
Allotments — 

Effect of sentence of forfeiture of pay upon 100 

For dependent parents '. 86 

Purchase of liberty bonds 29 

Baggage. See Baggage. 



150 INDEX. 

Pay and Allowances — Continued. Page. 

Balloon duty entitles officer to extra 5 

Civilian employees. See Pay. 

Commutation of heat and light, and quarters. See Quarters. 

Commutation of rations. See Rations. 

Continuous service pay — 

Drafted National Guardsmen 60 

Reenlistment applied for within three months 30 

Corporal of National Guard upon reenlistment after refusal to take oath. . . 39 

De facto officers 38, 84, 86, 129 

Drafted men exempted after reporting at camp 60 

Effect of failure to report to organization after discharge from hospital 122 

Enlisted men of National Guard at training camps 61 

Enlisted men of the Philippine Scouts. 103 

Expert rifleman's pay where Cavalry reorganized as Field Artillery 131 

Extra duty pay — 

Corregidor prison guards 123 

Right of enlisted men to 47, 115 

Field clerks not entitled to increase in compensation of civilian employees. 42 

Flying cadets 103 

Foreign service pay — 

Computation of 20 per cent increase 35 

Forfeiture of right to reservist's pay by failure to report address 121 

Gunner of Coast Artillery transferred to Field Artillery 86 

Insane soldiers 123 

Longevity pay — 

Computing service for 93 

National Guardsmen when drafted into Federal service 60 

Officers of Medical Reserve Corps on active duty 28 

Prior service in National Guard 103 

Reserve Nurse Corps for service in Army and Navy Nurse Corps 103 

Retired officers entitled to increases of 43 

Service in training camp 86 

Service of officer in Medical Reserve Corps in determining 28 

Marksman's pay, machine gun battalion 86 

Members of National Guard prior to muster into Federal service 48 

Men in training camps 61 

Mess and supply sergeants in supply companies 125 

Mileage. See Mileage. 
Mounts. See Mounts. 
National Guard — 

Additional pay of enlisted men as gunners 23 

Enlisted men who refuse to take Federal oath 34 

Increased pay for outdoor rifle practice under orders 51 

Retired enlisted man commissioned in federalized National Guard 117 

Retired officers and enlisted men commissioned in National Guard 23 

Prisoners of war 22 

Quarters. See Quarters. 
Rations. See Rations. 

Reenlistment pay not a bounty 61 

Retired officers and enlisted men ordered to active duty 24, 49, 122 

Retired officers transferred to active list 24 

Second enlistment pay after service in Philippine Scouts 131 

Service necessary for field clerk to receive allowances. 45, 78 



INDEX. 151 

l' ay and Allowances — Continued. Page. 

Sharpshooter's pay after transfer to aerial squadron 87 

Soldier injured while confined in hospital 119 

Status of naval officer for purpose of computing 75 

Stoppage — 

Claim for alimony 128 

Damages to private property 128 

Effect on allotments 100 

Enlisted man of Regular Army Reserve after court-martial sentence. . 13 

Private claims against enlisted men 86 

Travel. See Mileage; Traveling expenses. 

Penalties. See Confinement; Discharge; Sentences; specific name of offense. 

Penalty Envelopes. See Envelopes. 

Penitentiaries. See Confinement. 

Pension Bureau: 

Interpretation of line of duty 7 

Pensions: 

Right of field clerk to 13 

Widow of officer killed while engaged in proper recreation entitled to 7 

Philippine Islands: 

Citizens may not enlist in Medical Enlisted Reserve Corps 82 

Issue of rifles and ammunition to rifle clubs in 8 

Rental of building in Manila for soldiers on leave 121 

Philippine Scouts: 

Appointment as second lieutenants, Regular Army 114 

Enlistment in Regular Army after service in 131 

Extra duty pay of Corregidor prison guards 123 

Pay of enlisted men of 103 

Physicians. See Medical Corps. 

Police. See Civil authorities; Guards. 

Porto Rico: 

Regulations prohibiting intoxicants applicable to camps in 57 

Selective draft act applicable to 115 

Porto Rico Regiment of Infantry: 

Appointments and promotions in 101 

Component of Regular Army 101 

Post Exchanges: 

Agents for private laundries 82 

Liability to war revenue tax 101 

Post Office Department: 

Postal agents sent to France not entitled to war risk insurance 106 

Posts. See Camps. 

Precedence. See Command; Rank. 

President of the United States: 

Additional distinguished service medals provided for by 57 

Application of proclamation of April 6, 1917, to enlisted German 130 

Confirmation of dismissal of officer in tactical division 80 

Power to employ Army to suppress violence 53 

Power to prevent flying of aircraft during war 68 

Printing and Binding: 

Procurement from commercial concerns in time of war 20, 131 

Prisoners: 

Reward for apprehension of escaped garrison 129 



152 INDEX. 

Prisoners of War: Page. 

Jurisdiction of courts- martial over 100 

Pay of officers 22 

Right to food supplies and furniture taken from captured vessel 20 

Right to make and sell toys for benefit of German Red Cross 21 

Private Property: 
Losses. See Claims. 
Mounts of officers. See Mounts. 
Privates. See Enlisted men; Enlisted Reserve Corps; Regular Army Reserve. 
Prohibition. See Intoxicants; Vice. 
Promotions. See Officers — Promotion. 
Property. See Accounts; Captured property; Claims; Public property ; Real 

estate. 
Public Health Service: 

Right to purchase uniform clothing and supplies 118 

War-risk insurance for officers of 106 

Public Property: 

Application of eight-hour law to contracts for supplies bought in open 

market. 46. 56 

Damages. See Claims. 

Emergency purchases of military supplies 79 

Funds. See Funds. 

Import duty on Army supplies 45 

Leases. See Leases. 

Right of prisoners of war to property taken from captured vessel 20 

Sales — 

Disposition of money received from sale of garbage 104 

Illegal without inspection and survey 61 

Old materials 118 

Stores to crews of Army transports 125 

Subsistence supplies to Army field clerk 31 

Uniform clothing and supplies to employees of Public Health Service. 118 

Unlawful purchase of Government property 6 

Transfer of surplus spruce lumber to allied Governments 125 

Punishment. See Confinement; Discharge; Sentences. 
Purchases. See Contracts; Mounts; Public property. 
Quartermaster Corps: 

Field clerks. See. Field clerks. 

Determination of lineal rank in 87 

New commissions for officers of former departments consolidated with 114 

Storekeeper and second lieutenants, higher grade in Reserve Corps 117 

Quarters : 

Commutation of heat and light — 

Army field clerks 103 

Members of Officers' Reserve Corps and National Guard 49 

Quarters occupied by family of officer on field duty 86 

Subject to income tax - . 82 

Commutation of quarters — 

Army field clerk 103 

Army Nurse Corps 82, 128 

Officers on duty in the field 50 

Subject to income tax 82 

Heat and light allowance — 

Enlisted men assigned to public quarters 18 

Field clerks not entitled to 17 



INDEX. 153 

Railroads: Page. 

Repair of equipment damaged on Government tracks 126 

Transportation of troops over land-grant 119 

Railway Engineers: 

Organization formed out of Enlisted Reserve Corps 112, 113 

Rank: 

Captain assigned to active duty as junior military aviator 68 

Enlisted man on retirement 104 

Grade of first-class private, Engineer Corps, for reservist called to active duty. 9 

Grade of wagoner of Cavalry for reservist called to active duty 1" 

Lineal, how determined 87 

Noncommissioned officers — 

Reenlistment of corporal of National Guard when no vacancy in grade. 39 

Regular Army 88 

Summary court has power to reduce 46 

Officers transferred to another arm of service 39 

Relative rank of officers in Regular Army and officers of other forces 119 

Reserve officer not to be assigned as assistant to junior in Regular Army. . 22 
Service in National Guard for determination of relative 62, 126 

Ration Savings: 

Expenditure for feed for cow 40 

Rations: 

Nurses on duty in the field 128 

Real Estate: 

Leases. See Leases. m 

Sale of Government buildings without inspection illegal 61 

Recruit Training Units: 

Raised by draft exclusively 114 

Recruiting. See Draft; Enlistment. 

Red Cross: 

American National — 

Military jurisdiction over, while in France 98 

German — 

Sale of toys made by prisoners of war for 21 

Reenlistment. See Enlistment; Pay and allowances. 

Refusal of Surgical Treatment. See Medical treatment. 

Regular Army. See Army; Enlisted men; Enlistment; Noncommissioned 
officers; Officers: Pay and allowances. 

Regular Army Reserve: 

Enlistments continued in force during war ; -8 

Grade of first-class private, Engineer Corps, when called to active duty — 9 

Grade of wagoner of Cavalry for enlisted man called to dutv after furlough 

to ...... io 

Pay. See Pay and allowances. 

Remount Depots: 

Courts-martial jurisdiction over auxiliary 129 

Rental: 

Building for use of Army Medical School 120 

Building in Manila to house soldiers on leave - 121 

Payment by Government for leased property 27 

Payment in advance for lease of real estate 34 

Repatriation. See Citzenship. 

Reporters: 

Pay when called for service on efficiency boards 123 



154 INDEX. 

Requisition: t . ag 

Munitions for Allies re juired of manufacturers 113 

Reserve Nurse Corps: 

Longevity pay computed on basis of service in Army and Navy Nurse 
Corps 103 

Reserve Officers' Training Camps. See Camps. 

Reserve Officers' Training Corps: 

Commutation of subsistence 41 

Students entitled to advance standing in military science 83 

Reservists. See Enlisted Reserve Corps; National Guard Reserve; Officers' 
Reserve Corps; Regular Army Reserve. 

Resignation: 

Civilian employees without due notice 78 

Retirement: 

Computing war service for 88 

Drafted National Guard officer 104 

Increases of longevity pay for active duty 43 

Pay of officers and enlisted men assigned to active duty 24, 49, 122 

Pay of retired officers and enlisted men commissioned in National Guard . 23 

Pay of retired officers on transfer to active list 24 

Provisional second lieutenant 132 

Rank of enlisted man on 104 

Retired enlisted man commissioned in federalized National Guard 117 

Service which may be counted by enlisted men 104 

War risk insurance for retired officers and men !06 

Revenue. See Taxes. 

Reviewing Authority: 

Disapproval of findings 108 

Not required to write action in own hand 90 

Procedure where sentence is improper in form 109 

Reward: 

Apprehension of escaped garrison prisoner 129 

Charge against deserter not authorized 80 

Delivery at place other than nearest military post 99 

Payable for apprehension of deserter although disqualified for service 55 

Place of delivery of deserter 55 

Ribbons: 

Unauthorized wearing of service 1 28 

Rifle Clubs: 

Issue of rifles and ammunition to clubs in Philippine Islands 8 

Russian Railway Service Corps: 

Not entitled to war risk insurance 106 

Salaries. See Pay; Pay and allowances. 

Secretary of War: 

Delegation of authority to act on reports of surveys 15 

Selective Draft Act: 

( 'onstitutionality 70, 71 

Finality of decisions of local boards 71 

Seniority. See Rank. 

Sentences: 

Confinement. See Confinement. 

Construction of forty-fifth article of war 45 

Construction of forty-eighth article of war .34, 98 

Desertion committed in time of peace 110 



INDEX. 155 

Sentences — Continued . 

Discharge. See Discharge. rage. 

For violation of liquor regulations 95 

Forfeiture of pay without term of confinement 52 

Legality of sentence by summary court reducing noncommissioned officer. 46 
Limitation of, by summary court 78 

Sergeants: 
Mess — 

Band sergeants of Coast Artillery Corps not detailed as 11 

Detail of enlisted men 117 

For Engineer band 121 

For supply companies 125 

Supply— 

For supply companies 125 

Organizations other than Engineers 78 

Service: 

See also Accused; Army; Draft; Enlisted men; Enlistment; Officers; Pay and 

allowances; Retirement; name of an organization. 
Commutation of quarters and subsistence for Army Nurse Corps in field.. . 82 

( Computing war service for retirement 88 

Continuation in National Guard after expiration of enlistment 19 

Field officer as judge advocate with punitive expedition (i 

Necessary service for Army field clerk to qualify for allowances 45 

Noncombatant service defined 56 

Sharpshooters : 

Pay after transfer to aero squadron 87 

Sickness. See Deceased persons; Disability; Hospitals; Illness; Line of duty: 
Medical treatment. 

Signal Corps: 

Aviators. See Aviators. 

Civilian field clerks not entitled to war risk insurance 106 

Eligibility of marine for detail in aviation section 83 

Enlistment for musical purposes only not authorized 57 

Organization of divisions of 20 

Regiments to assist in cutting spruce for airplanes 130 

Signal Officers' Reserve Corps: 

Aviation section, travel orders issued by Chief Signal Officer 29 

Eligibility of members for examining boards 85 

Spain: 

Treaty with, exempting from compulsory military service 97 

Special and Technical Troops: 

In addition to drafted forces 114 

Staff Duty: 

• Draft of State staff corps 58 

Personal aids for major and brigadier generals 115 

State administrative staff officers not part of National Guard 58, 112 

State Authorities. See Civil authorities. 

Statute of Limitations: 

Trials for desertion 22, 79 

Stoppage of Pay. See Pay and allowances. 

Storekeeper: 

Eligibility of military storekeeper for higher rank in Reserve Corps 117 

Stores. See Public property. 



156 INDEX. 

Subsistence: rage. 

Army Nurse Corps 82 

Commutation of, for members of Reserve Officers' Training Corps 41 

Officers on Army transports 61 

Subsistence Supplies. See Public property. 

Supplies. See Public property. 

Surgeons. See Contract surgeons; Medical Corps. 

Surrender of Soldiers. See Civil authorities; Desertion ;Reward. 

Surveys: 

Delegation of authority by Secretary of War to act on reports of 15 

Sale of public property illegal without 61 

Tariff: 

Army supplies not exempt from 45 

Taxes: 

Commutation of quarters, heat, and light subject to income 82 

Liability of post exchange to war revenue 101 

Motor vehicles subject to war revenue 105 

Telegrams: 

Payment for, when sent by Civil Service for Ordnance Dept 122 

Testimony. See Accused; Evidence; Witnesses. 

Training Camps. See Camps. 

Transportation : 

Troops on west side of Canal Zone 116 

Troops over land grant railroads 119 

Transports: 

Courts-martial jurisdiction over civilians on Army 110 

Sale of supplies to crews of Army ' 125 

Subsistence of officers on 61 

Travel Orders: 

Issued to Aviation Section. Signal Officers' Reserve Corps 29 

Traveling Expenses: 

Discharged drafted man 87 

Drafted men exempted after reporting at camp 60 

Enlisted man discharged because convicted by civil court 43 

Enlisted man discharged to accept commission 43 

Regular Army reservist on discharge 94 

Transfer of officer for his convenience does not entitle to 10 

Trials. See Accused; Civil authorities; Courts-martial; Evidence; Witnesses. 

Uniform: 

Field clerks 127 

Home Guards 68 

Psychological examiners at camps 54 

Reserve officers not on active duty 68 

United States Military Academy: 

Burial expenses of cadets 116 

Cadets not entitled to war risk insurance 106 

United States Naval Academy: 

Midshipmen not entitled to war risk insurance 106 

Vaccination : 

Compulsory legal in the Army 129 

Veteran Corps of Artillery: 

Not part of National Guard or Naval Militia 76 

Veterinary Corps: 

Age qualifications for appointment as assistant veterinarian 41 



INDEX. 157 

Vice: Page. 

Expense of enforcing regulations for suppression of 77 

Regulations applicable to Regular Army posts 82 

Suppression of, within zones of prohibition 58 

Vocational Education: 

At Disciplinary Barracks 117 

Wagoners: 

Cavalry, called to active duty after furlough to reserve 10 

Grade not authorized for separate companies of Engineers, National Guard. 58 

Witnesses: 

Attendance of, before local draft boards 81 

Expenses when called before examining boards 123 

Place of trial determined by expense of securing 31 

Procedure when witnesses are absent in military service 99 

Right of accused to testify as , 128 

Women: 

Eligibility for appointment in Officers' Reserve Corps, medical section 124 

Words and Phrases: 

Acting Army field clerk 31 

Allowances 13 

Division 54 

Grade 22 

Military camps 47 

Military service 27 

More or less 25 

Officers 22 

Provisional 9 

Rank 22 

World War: 

Declared against Germany by United States on April 6, 1917 37 

Young Men's Christian Association: 

Heating and lighting fixtures for buildings of 77 

Young Women's Christian Association: 

Heat and light for hostess houses 77 

Zones op Prohibition: 

Alien enemies 130 

Sale of intoxicants within 130 

Seizure of intoxicants within 57 



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